Judith Shklar’s Constitutional Politics in States of Emergency: The Function of the Energetic Executive in the Face of Passive Injustice

Judith Shklar’s political conception of the law understands that constitutionalism works best as a political framework for justifying the functional purposes of government. This article brings Shklar into the famous twentieth-century debate over emergency powers between Carl Schmitt and Hans Kelsen. Her critiques of both Schmitt and Kelsen provide a new perspective on the debate and offer a novel nonlegal standard for judging the actions or inactions of executives in crises. Shklar is uniquely positioned as an interlocutor with Schmitt because of their shared conception that the law is “political.” Her constitutional commitment against passive injustice better helps us assess when executives are obligated to energetically mitigate the effects of emergencies. This theory responds to Schmitt’s challenge that liberal constitutionalism is incapable of avoiding the dangers of underreach. I illuminate the function of an energetic executive by applying Shklar’s constitutional politics to notable case studies in American politics.