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A study of states of exception in constitutional law, this project proposes an amendment to the Constitution of the United States, providing for limited derogations of constitutional rights under declarations of emergency. The project begins with an analysis of US Supreme Court case law dealing with limitations of constitutional rights (e.g. suspension of the writ of habeas corpus and the freedoms of speech and press) during periods of crisis, such as war or the threat of war. This discussion demonstrates the perils of precedent in normalizing the exception in the absence of a constitutional state of emergency. The second chapter gathers “lessons from abroad,” evaluating the successes and failures of foreign and international emergency provisions and derogation clauses in constitutions and covenants—namely, India, South Africa, and the international human rights treaties. Drawing on these discoveries, Chapter 3 culminates in a proposal of the precise terms of the 28th Amendment, which constructs a constitutional quarantine for exceptional claims in US law and politics. The proposal is accompanied by an explication of the values and structures it means to fortify—among them, the separation of powers, the process of deliberation, and the institution of judicial review.
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DiFabbio, Benjamin Salvatore, "The Rule that Proves the Exception: A Constitutional State of Emergency in the United States" (2013). Senior Projects Spring 2013. 316.