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Overcoming NecessityEmergency, Constraint, and the Meanings of American Constitutionalism$
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Thomas P. Crocker

Print publication date: 2020

Print ISBN-13: 9780300181616

Published to Yale Scholarship Online: January 2021

DOI: 10.12987/yale/9780300181616.001.0001

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Constitutionalizing Necessity Through Suspension

Constitutionalizing Necessity Through Suspension

(p.59) 2 Constitutionalizing Necessity Through Suspension
Overcoming Necessity

Thomas P. Crocker

Yale University Press

This chapter explores how the American Constitution embeds authority to suspend the writ of habeas corpus in extraordinary times, which allows executive officials to detain individuals without judicial oversight during emergencies. It analyzes the provision that functions as a temporary “emergency constitution” but does not license anything like a complete suspension of the constitutional order. It also looks at how the Suspension Clause works and what it does not authorize, which sheds light on how to incorporate and overcome necessity through ex ante constitutional means. The chapter mentions Chief Justice Marshall that explained in McCulloch how necessity has an ordinary governing relation to normative constraint. It also highlights necessity as a normal part of governing decision–making and subject to review in proportion to how much it invades protected constitutional rights and liberties.

Keywords:   American Constitution, writ of habeas corpus, emergency constitution, Suspension Clause, Chief Justice Marshall, McCulloch

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