| In this work, I sketch an argument about the foundations and limits of constitutional authority during times of emergency. Beginning with the premise that some forms of political terrorism raise unique issues of constitutional crisis. I argue that even though crises test the limits of constitutions as effective restraints upon governments, there are basic principles of constitutionalism that both permit and restrict the exercise of emergency power in all constitutional democracies.; These conditions are constitutive of constitutionalism and of constitutional government: They do not depend for their authority upon their inclusion or recognition in particular constitutional documents. Instead, they make up part of a universe of meaning within which constitution making, constitutional interpretation, constitutional maintenance, and constitutional dissolution are coherent (and distinct) activities. As a result, suspension of a constitutional document, the acceptability of which is itself determined by the constitutive principles, does not authorize a departure from these extradocumentary principles.; After I formulate and defend a statement of the constitutive principles of constitutionalism, I show their application in constitutional commentary by examining Great Britain's statutory attempts to control terrorism in Northern Ireland. I stress that I am not much concerned with whether Britain's anti-terrorist policies pass muster under English constitutional standards (though such an analysis would be important), for I am interested in whether the broader principles of constitutionalism provide a standard against which to measure the suitability of emergency provisions in any constitutional state. |
