The Emancipation Proclamation and the Commander in Chief Power

Levinson, a good Socratic teacher, poses the question what is the relationship of emergency or necessity to constitutional power, constitutional rights, and constitutional interpretation generally, and surrounds it with a characteristically fascinating discussion. But while his leanings are clear, he does not clearly answer the question his discussion poses. One can certainly infer that Levinson dislikes Carl Schmitt's legal theories of emergency, which he sees as justifying Hitler's rise to power. And it certainly comes through quite clearly that Levinson feels the same way about the U.S. Department of Justice's legal analysis concerning detention and interrogation of war prisoners (which he condemns, but the substantive content of which he does not discuss)-analysis he regards as endorsing similarly fascistic claims(!) of President Bush.

Levinson even touches on an article of mine concerning the idea of "necessity" in constitutional law.' I gather I am supposed to be another of the villains against whom he is contending (though, I trust, not of the same magnitude of evil as these others), but I am not quite sure!' The chief problem is that Levinson does not himself offer a theory of the legitimate scope of emergency power. We only know what he does not like.