–Rodrigo Kaufmann, Assistant Professor of Constitutional and Administrative Law, Tilburg University, Netherlands
A few (Latin) American governments have recently declared constitutional states of emergency to deal with what has been presented as public security emergencies or crises. In this post, I discuss how recent developments – a proposed constitutional amendment in Chile and the ongoing exceptional regime in place in El Salvador – seem to express an understanding of constitutional states of emergency as temporally decoupled – either as anticipation or as remanent – from the exception that in principle justifies them. This shift effectively subverts the dynamic between normalcy and exception by redefining normalcy as the avoidance of the emergency through constitutionally extraordinary means.
The Constitution(al Function) under Pressure
The modern constitution embodies and expresses the idea(l) that political power is channelled and organized through law, making an unlimited, abusive exercise of power less likely. In the constitutional state, sovereignty — the quintessence of modern political power — is subject to the forms established by the constitution, as expressed in a number of constitutions worldwide.
It is nowadays hardly original to claim that this ideal is heavily under pressure, for a number of different reasons. On the one hand, as has been witnessed and widely discussed, illiberal, authoritarian regimes amend constitutions or radically change existing legal orders to adapt them to their political agendas. The case of Hungary under Viktor Orbán is, of course, a case in point, and only recently, Colombia’s former President Petro sought to rewrite the Constitution ignoring procedural constraints, in order to fully implement his programmatic platform. On the other, regimes tamper with judicial constrains on the exercise of power, for instance by appointing judges and justices aligned with their political aims, in order to further informal constitutional change. In both cases, the constitution and rest of the legal order remain formally in place but are rendered unable to perform the function mentioned above, that is, being an actual check and a limit on the exercise of institutionalized political power. These phenomena have usually been labelled abusive constitutionalism.
Constitutional States of Exception
What might be more interesting than that well-known diagnosis are the new ways in which the degradation of the constitutional function of structuring, channelling, and limiting the exercise of political power are operating.
In different countries on the American continent, governments have sought to deepen the dismantling of constitutional limits on the exercise of political power by invoking constitutional states or regimes of exception, which operate as legally authorized removal of significant constraints on power, typically the clauses protecting fundamental rights and liberties.
The model to be emulated in this regard are the security policies implemented by Nayib Bukele in El Salvador, who, in order to combat crime, declared a constitutional state of exception in 2022. The result of the policies pursued under it – a significant improvement in relevant security indicators – came at the price of, bluntly, a regression to standards predating the Magna Carta in terms of institutional constrains on power. As the Inter-American Commission on Human Rights has highlighted, the state of emergency effectively suspends the right to legal defense and extends administrative detention timelines. The United States’s Congress Research Service, referencing a report by Amnesty International, write of documented cases of “torture, arbitrary detention, verbal and physical abuse, and the denial of inmates’ access to food and/or medicine by security forces”. It is, in other words, the situation in El Salvador is such that the all-important goal of guaranteeing public security has swept away all potentially conflicting interests and values, including minimal constitutional safeguards.
The use of this institutional tool of the state of emergency, in turn, is justified by a rhetoric of emergency or crisis, an exceptional situation posing an extraordinary threat to the political community, and one that traditional institutional mechanisms and powers are supposedly insufficient to address. Carl Schmitt, as is well known, indeed associated the notion of sovereignty in the context of the modern constitutional state in his Political Theology not with an institutionalized power under the constitution, but precisely with the possibility of power setting aside legal limits.
Subversion of the Emergency: Exception as the Precondition of Normalcy
There is, moreover, something particular and distinctive about the current dynamic between emergency and extraordinary constitutional powers in Latin America, and that is the progressive temporal decoupling of the constitutional state of exception from the extraordinary situations — “emergencies” — that in principle justify them.
Indeed, in Chile, José Antonio Kast, who also won the Presidency largely on an agenda based on fighting crime, is currently seeking to amend the constitution, adding a new, specific state of constitutional emergency on security. Should the amendment be approved, it would allow the President to concentrate an unprecedented amount of power in the Chilean constitutional order in his office.
The most interesting element for the purpose of the analysis presented here, at any rate, is how this new state of emergency would be triggered. Notably, the new state of emergency proposed differs from those already regulated in that it does not require the emergency to have actually taken place; a “serious and imminent threat” to security suffices. In other words, it is not necessary for the emergency justifying the exceptional regime to actually exist and to have already caused significant disruptions; it is enough for the President to claim that such an emergency is likely to occur. The critical (legal) question — what constitutes a serious and imminent threat; when is that threshold reached? — will determine the extent to which the exceptional regime becomes temporally detached from the emergency that justifies it; what seems to be clear, at any rate, is that the regulation operates as a decoupling — anticipatory, in this case — between extraordinary powers and actual emergencies.
Such a decoupling can also operate as a remanent, after the emergency has, in principle, been resolved. Perhaps the best example is again El Salvador, where the Salvadoran Congress extended the “state of exception” for President Bukele at the end of August for the 54th time. The state of exception, as mentioned above, first declared in March 2022, has already completed full four years in force. Paradoxically, according to the government’s own published statistics, the security situation in El Salvador has largely been stabilized already. Indeed, as early as 2023 the Salvadoran presidency claimed the country had become “the safest in Latin America“; more than three and a half years later, however, the state of exception remains in force, producing a stark contrast between the (end of the) claimed emergency and the extraordinary regime.
This decoupling reveals a potential shift in the significance of “exceptionality” in the context of extraordinary constitutional regimes. As Agamben has aptly described in his State of Exception, this evolution marks a very concrete institutional path through which constitutional emergency regimes lose their exceptional nature and become a permanent technique, a paradigm of government. Or perhaps rather: The exceptionality of the emergency regime ceases to refer to a frame of temporal reference, conceived as a strict relation of temporal equivalence between the exceptional emergency and the exceptional institutional regime, both conceived as limited and finite. Increasingly, the exception becomes the background against which normalcy, the non-exceptional, is understood and perceived. The Agambian paradigm shows itself as a shift through which unconstrained political power is not anymore institutionally or conceptually connected to putting an end to the emergency but justified on the grounds of preventing the emergency from appearing – as anticipation – or guaranteeing that it won’t occur again – as remanent. In other words, the exceptionality becomes merely a descriptor of how extraordinary institutional frameworks are the price to pay to prevent the ever-looming emergencies and crises from erupting.
By shifting the relationship between normalcy and exception, the underlying dynamic between regular and exceptional constitutional regimes is finally turned upside down; the constitution(al function) remains formally in place but is set aside and replaced by a state of permanent institutional ambivalence. Or, as one might say in Schmittian terms: Sovereignty finds its way back into our constitutional frameworks.
Suggested citation: Rodrigo Kaufmann, Constitutional States of Emergency or Reshuffling Exception and Normalcy, Int’l J. Const. L. Blog, Sept. 15, 2026, at: http://www.iconnectblog.com/constitutional-states-of-emergency-or-reshuffling-exception-and-normalcy/