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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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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 14 April 2021

Normalizing Necessity: From Scrutiny to Exigency

Normalizing Necessity: From Scrutiny to Exigency

Chapter:
(p.87) 3 Normalizing Necessity: From Scrutiny to Exigency
Source:
Overcoming Necessity
Author(s):

Thomas P. Crocker

Publisher:
Yale University Press
DOI:10.12987/yale/9780300181616.003.0004

This chapter investigates the concept of the greater the governmental need the better the justification for intruding upon baseline rights and liberties. As an example, it explains that a legislature may have license to pursue a compelling need by means claimed necessary even while deviating from strict protection of a constitutional right. It explains how necessity can enhance or diminish the scope of pre–existing powers of a defined government office, such as granting a president confronting a military emergency with wide discretionary latitude to act with enhanced executive powers without having to claim new ones. The chapter also assesses how channeling executive discretion into a judicial doctrine of “exigency” enhances the scope of government action in relation to a protected right. It focuses on counterterrorism surveillance practices, which argues that the existence of exigency doctrines provides ways to normalize necessity in everyday governing practice.

Keywords:   constitutional right, necessity, government office, military emergency, executive discretion, judicial doctrine, counterterrorism surveillance practices

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