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40 Ga. L. Rev. 835 (2005-2006)
Small Emergencies

handle is hein.journals/geolr40 and id is 855 raw text is: SMALL EMERGENCIES
Kim Lane Scheppele*
There was an old joke in the Soviet Union: What is the most
constant element of the Soviet system? The answer? Temporary
problems.'
The Soviet Union was fond of thinking of itself as a socialist
panacea, but daily life never lived up to the advanced billing. The
solution of the Soviet government was to hold the ideal out into the
future and attribute the overwhelming problems with which the
average person had to cope in actually existing socialist times to
temporary problems that ever-increasing socialism would fix. One
day, the government assured its citizenry, the problems would be
gone.
In response to the fine article by Sanford Levinson on
Constitutional Norms in a State of Permanent Emergency,2 I want
to adapt this joke to diagnose the relation between constitutional
dreams and constitutional reality in the United States. What is the
most constant element of American constitutionalism? we might
ask. The answer, I suggest, is small emergencies.
What do I mean by small emergencies? Small emergencies are
problems that are deemed worthy of exceptional solutions, but are
simultaneously deemed too minor to warrant a full-fledged
reassessment of constitutional structures and constitutional
aspirations. The very idea that emergencies could be minor-like
the very idea that problems are temporary-suggests that they are
* Director, Program in Law and Public Affairs, and Laurence S. Rockefeller Professor
of Public Affairs in the Woodrow Wilson School and University Center for Human Values,
Princeton University. Faculty Fellow, University of Pennsylvania Law School. I would like
to thank Sandy Levinson for many helpful conversations about these ideas and Serguei
Oushakine, who refuses to accept a permanent emergency in daily life. My section on the
history of emergency regulation in the United States appears in a different context and more
detailed form in Kim Lane Scheppele, North American Emergencies, 4 INTL J. CONST. L.
(I-CON) 213 (forthcoming 2006).
' Alexei Yurchak, The Cynical Reason of Late Socialism: Power, Pretense, and the
Anekdot, 9 PUB. CULTURE 161, 179 (1997).
2 Sanford Levinson, Constitutional Norms in a State of Permanent Emergency, 40 GA.
L. REV. 699 (2006).

835

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