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Exceptions to General Rules, for Emergency Situations
There are three specific exceptions of this sort in the text, two
relating to individual rights and the third relating to the powers of
the states vis-a-vis the national government. First, the privilege of
the writ of habeas corpus (permitting a person to obtain judicial review of the validity of his detention, in a proceeding independent of
that, if any, in which the detention was ordered) cannot be suspended, “unless when in Cases of Rebellion or Invasion the public
Safety may require it."3 Second, no one may be charged with a capital or otherwise infamous crime without an indictment by a grand
jury, "except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger."4
Third, no state may engage in war, "unless actually invaded, or in
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“The United States shall guarantee to every State in this Union a Republican
Form of Government, and shall protect each of them against Invasion, and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence."
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Article I § 9, cl. 2.
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Fifth Amendment, cl. 1.
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such imminent Danger as will not admit of delay."5 Finally, one
other provision of similar, if less specifically military character may
be mentioned: that which allows the President “on extraordinary
Occasions” to convene one or both houses of Congress.
Two things about these provisions are especially noteworthy in
relation to our topic. One is that while the allocations of power are
general, the exceptions are specific to particular limitations on government action, inviting the conclusion that the Framers intended
no other exceptions to be recognized. The other is that — with the
exception of the last one — they all have to do with force and violence: war, invasion, rebellion, insurrection, the use of the militia to
enforce the laws. Despite the facts that "promot(ing) the general
Welfare” and “secur(ing) the Blessings of Liberty" are listed along
with "insur(ing) domestic Tranquility” and “providing) for the common defense” in the Preamble, and that – as the most cursory reading of Article I 8 reveals — creating a national government with
power to regulate economic activity was an equally explicit concern
of its dispositive provisions, nowhere in the document is to be found
a recognition of economic or other non-military emergencies as situations for exceptional action. The obvious questions for interpretation, therefore, are: (i) whether war or other military emergency
warrants any exceptions to the normal arrangements other than
those expressly set forth, and (ii) whether non-military emergency
warrants any exception at all.
B. Orthodox Doctrine in Military Emergencies: the "Perfect
Constitution"7?
Alexander Hamilton, in the Federalist,8 argued in support of
adoption of the Constitution that it should provide the national government with all the power it needs to deal with any of the emergencies which confront any nation. With respect to the complex of
powers relating to "common defense", he said:
“These powers ought to exist without limitation, because it
is impossible to foresee or to define the extent and variety
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