Constitutional exceptionalism and the common law

Abstract

This paper examines the notion of exceptionalism, currently pervasive within constitutional discourse. The term "exceptional" is used in this context to indicate a measure that deviates from normal constitutional standards and is, by virtue of that deviation, seen as inappropriate or regrettable. The paper avoids a direct focus on the debate about terrorism, concentrating instead on more conceptual matters-and particularly on the "fit" between this discourse and the "common law constitution." It turns first to John Locke and uses his theory of the prerogative as a means of highlighting the difficulty of determining what counts as "exceptionalquoT; in this, our "age of statutes." Turning next to the common law constitutionalists" theory of emergency powers, articulated most skillfully by David Dyzenhaus, the essay argues that this theory rests on a mistaken understanding of the nature of common law. Finally, it addresses the issue of extraconstitutionality and common law more generally, taking as its focus the "extralegal measures model" of emergencies advocated by Oren Gross and Mark Tushnet. © The Author 2009. Oxford University Press and New York University School of Law. All rights reserved.