Jump to ContentJump to Main Navigation
Overcoming NecessityEmergency, Constraint, and the Meanings of American Constitutionalism$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

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

(p.87) 3 Normalizing Necessity: From Scrutiny to Exigency
Overcoming Necessity

Thomas P. Crocker

Yale University Press

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

Yale Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us.