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8 W. J. Legal Stud. 1 (2018)

handle is hein.journals/wesjalals8 and id is 1 raw text is: Sherwood: Tracing the American State of Exception TRACING THE AMERICAN STATE OF EXCEPTION FROM THE GEORGE W. BUSH, BARACK OBAMA, AND DONALD TRUMP PRESIDENCIES A. PERCY SHERWOOD* INTRODUCTION The normal sources of governance in a democratic system are the general rules and laws that may be elaborated from a constitutional and statutory command.' In times of war, the general rule of law is traditionally suspended and executive power is temporarily accorded to a strong authority that attempts to resolve the crisis. This temporary moment of personal rule, as Aristotle states in his Politics, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.2 The state of exception (or state of emergency, necessity, or martial law) is the legal instrument that allows for the sovereign leader to transcend the rule of law for a short period of time under a personal discretion to do justice for the public good. Today's recurrent threats of terrorism (including non-state actors in the Middle East and North Africa, radicalized individuals who are on the verge of committing acts of violent jihadism, and radical Islamic violence itself) often serve as abstractions that justify exceptional security measures. This contemporary form of governance reveals a disturbing trend about the changing political-legal culture in the Western world: executive and police powers used during states of exception are likely to become integrated into normal law after a crisis is over. The aim of this investigation is to demonstrate how the post-9/11 state of exception is increasingly used as the basis of contemporary American governance. This form of governance has been intensified since 9/11 by suspending normal rules and procedures and replacing them with extrajudicial measures that threaten fundamental freedoms. The first section develops a framework for the state of exception which draws from Giorgio Agamben. It establishes the existence of the state of exception today and describes how the exception is a liminal space devoid of all law. The following section Copyright @ 2018 by SHERWOOD. * A. Percy Sherwood is a graduate student of journalism and communications at Western University. He holds a Master of Arts in political science from Western and a Bachelor of Social Sciences (with concentrations in political science and sociology) from the University of Ottawa. His research interests include critical political theory, surveillance and biometric technologies, post-structuralism, and existentialism. 1 Antonin Scalia, The Rule of Law as a Law of Rules (1989) 56:4 U Chicago L Rev 1175 at 1176. 2 Ibid at 1182. Published by Scholarship@Western,

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