From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization

Abstract

In this paper, I argue that rediscovering the role of responsibility vis-à-vis political judgment in constitutional ordering is pivotal to the constitutionalization of emergency powers amidst the normalization of the state of exception. I first identify two features of the liberal answer to the question of emergency powers: conceptually, it is premised on the normative duality of normalcy and exception; institutionally, it pivots on the identification of institutional sovereignty that judges the state of exception. I then explain why this paradigm falters with the blurring of normalcy and exception. Drawing on the role of ‘theatricality’ in Hannah Arendt’s political theory, I suggest that making the public ‘see’ the role of judgment in the current undeclared emergency regime underpin the re-constitutionalization of emergency powers. Recast in constitutional mindset, the judiciary is expected to act as the institutional catalyst for forming the public judgment on the ongoing state of emergency.