Just trust us: a short history of emergency powers and constitutional change

Abstract

This article focuses on the relationship between governmental emergency power (ie, the power to derogate from the laws in emergencies) and constitutional change. It seeks to explain how, in the past, uses of emergency power contributed to constitutional transformations. Three historical examples are analysed and compared: the fall of the Roman Republic in the first century BC, the emergence of a more centralized government towards the end of the Middle Ages and the decline of the Weimar Republic in the 1920–30s. The comparison shows that these constitutional transformations can be explained by the normalization of emergency powers, ie, their use as regular means of governance. Moreover, the notion of public trust appears to have played a key role in these constitutional transformations, either by constraining emergency powers in the absence of other legal restrictions or by legitimizing extra-legal uses of these powers that undermined existing constitutions.