Nine out of ten modern constitutions contain explicit emergency provisions, describing who can call a state of emergency (and under which conditions) and the additional powers government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze under what conditions government behavior under a state of emergency deviates from constitutional provisions and a de jure/de facto gap thus emerges. Such a gap can be caused by the unlawful declaration of an emergency, the noncompliance with constitutional provisions in the course of an emergency, or the perpetuation of a state of emergency beyond the constitutionally defined length. Based on a novel dataset comprising 853 emergency declarations, 115 are identified as unlawful. We find that events caused by political turmoil are more likely to be followed by an unlawful emergency than natural disasters. Autocratic governments are more likely to renege against the constitution than democratic governments.

States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit “emergency constitution,” that is, the constitutionally safeguarded rules of operation for a state of emergency. This chapter asks whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory, arguing that there are important arguments, both against and in favor of constitutionalized emergency provisions, and that social contract theory – as applied by economists – can be of some help when deciding whether to have, or not to have an emergency constitution.

Media freedom is often curtailed in the wake of terrorist attacks. In this chapter, we ask whether constitutional provisions that are intended – directly or indirectly – to protect media freedom affect the degree to which press freedom is curtailed after terrorist incidents. We find that neither provisions explicitly protecting media freedom nor provisions that might protect media freedom indirectly (such as those guaranteeing the independence of the judiciary) mitigate the post-terror curtailment of press freedom.