November 2007, Volume 93, Issue 7
Democratic Failure and Emergencies: Myth or Reality?
by James McDonald
93 Va. L. Rev. 1785 (2007)
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Academics have long debated the ability of a democratic government to respond to emergencies. This historical debate has assumed new significance as scholars attempt to respond to the challenges presented by the twenty-first century and the “War on Terror.” Commentators have reached different conclusions regarding how a government should operate during times of emergency, but each commentator’s ultimate conclusion must first answer an underlying, prior question: What exactly happens to democracy during times of emergency?
Traditional emergency-politics theorists explain democratic government during emergency with the “democratic failure theory.” But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have attacked the “democratic failure” theory, asserting that nothing relevant happens during an emergency to inhibit the ability of a democratic government to function. Certainly, they concede, minorities might “lose” during emergencies, but they do in normal times as well.
This Note, while remaining ambivalent about a broad application of the traditionalists’ democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. Without contesting that those factors were relevant in the internment decisions, this Note argues that individuals of Japanese descent were interned primarily because an anti-Japanese West-Coast coalition successfully exploited the democratic failure caused by the emergency of World War II. The coalition had long sought these exclusionary measures, but before World War II, those measures lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition finally harnessed the political capital necessary to achieve its exclusionary goal, if only temporarily.
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