Guest Lecturer: Professor Sanford Levinson from UTexas Law School
general subject- emergency powers of the president

What's the best way to design a constitution?
2 basic models
1- ignore the possibility that there could be emergencies that could suspend normal law
2- account for said possibility

US constitution- essentially type #1
with limited exceptions (declare war, suspend habeus corpus), USconst essentially ignores emergencies

the most litigated clause in the 19th century, but pretty much not important now (due to supreme court decisions)
-article 1, section 10 (no state shall pass a law that impairs the obligation of contracts)
"naive" reading of this section (and 1st amendment, for that matter), says that there shall be NO LAW
(what part of NO don't you understand?)

during the depression (1930s), many states begin to pass debtor relief laws to allow people from losing their homes, etc
-supreme court upheld debtor relief laws (esp minnesota), flying in the face of the constitutional text
-because "in times of emergency" (this includes economic), one cannot ALWAYS play by the preordained rules
-state must display a compelling state interest to violate or abridge these rules

basically, we assume that there will be very few emergencies, and that those will be dealt with by ordinary litigation
-puts huge amounts of power in the hands of the supreme court
-assumes that the supreme court will be monitoring the 'compelling state interests'

1 thing that the president, or even congress, can't do is say that 'we are in a state of emergency' and suspend random rights

other constitutions follow second model (include provisions for emergencies)
-key example- germany- wiemarr republic- allowed chancellor to declare state of emergency and suspend certain constitutional protections
-art.48 allowed this
-over 250 declarations of emergency during the '20s, most of which were economics
-some people equate this allowance for emergencies with hitler coming to power, but this is a fallacy
-india, germany, france even TODAY allow for emergency suspension of rights

HUGE question facing constitution drafters- should emergency powers be put into a constitution?
-if the answer is yes, then WHO gets to declare emergencies?
-carl schmitt (chief apologist for the nazi regime) defined the soverign of a state as the person or group that can suspend normal rights
-if the constitution decides that a congress or parliament gets to decide this, the purpose is to engender debate about the decision in the first place