Article

Emergencies, Alien and Domestic

Samuel Issacharoff

Reiss Professor of Constitutional Law, New York University School of Law.

My thanks for input from participants at The University of Chicago Legal Forum and at presentations at Northwestern Law School, Oxford University and at Queen’s University Law School. I am indebted to Jordan Crivella, José Guillermo Gutiérrez, Keton Kakkar, Olivia Shaw, and Sam Stein for great research assistance.

Democracies survive some emergencies, even emerging stronger after some crises despite temporary suspensions of liberty. Democracies die when faced with other emergencies. This Article explores why. It addresses the claimed need to limit rights of electoral participation in response to the rise of antidemocratic forces through the lens of militant democracy in Europe and the Insurrection Clause of Section Three of the Fourteenth Amendment in the United States. When examined through the context of claimed exigency, the ability of democracies to survive or even thrive after emergencies turns heavily on whether the source of the perceived threat is foreign or domestic. As applied to Trump v. Anderson, context explains why a tool for disabling the former Confederacy fits poorly when applied to the leading candidate for the presidency.

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