Property Rights versus "Public Necessity": A Perspective on Emergency Powers and the Supreme Court

Abstract

Chief Justice Earl Warren once wrote that a free government is continuously “on trial for its life.”1 And never are the foundations of constitutional liberties more fragile than in periods of emergency, when government invokes extraordinary powers. Invariably, emergency powers involve the immediate curtailment of some rights; at their extreme in martial law, they can warrant an entire suspension of normal civilian governmental functions, as well as full suspension of due‐process guarantees.2 Once the constitutional fabric has been stretched to accommodate urgent public necessity in such situations, moreover, restoration to its earlier condition is not automatic or inevitable. On the contrary, as Justice Robert Jackson presciently warned, once the Supreme Court validates as constitutional the abridgement of essential rights during an emergency—and especially when the Court does so in relation to “the vague, undefined and undefinable ‘war power’”—any principle that is thus articulated to justify such emergency action “then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”3

The 'Social', the 'Legal' and Law-and-Society Research

“…Contemporary discourse on law and literature, law and cinema and law and the arts -which owes much to the contributions of Austin Sarat -is a testimony that much can be learned from such interdisciplinary scholarly endeavour. The same, of course, applies to history (see the canonical works of Harry Arthurs [1985] and Harry Scheiber [1980Scheiber [ , 1981Scheiber [ , 2002Scheiber [ , 2003). And anyone attending the meetings of the American Society of Law and Philosophy can certainly attest to the dire need for cross-fertilization between the ethicists and social scientists.…”

Eminent Domain Versus Government Purchase of Land Given Imperpect Information About Owners' Valuation

“…This has occurred during wars and other armed conflicts, natural disasters, fires, and various crises. See, for example,Scheiber (2003).…”