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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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Constitutional Emergencies Inside and Out

Constitutional Emergencies Inside and Out

(p.123) 4 Constitutional Emergencies Inside and Out
Overcoming Necessity

Thomas P. Crocker

Yale University Press

This chapter considers a family of constitutional theories that advocate for an internal principle of necessity. It looks at factors that argue constitutional constraints that can become a “suicide pact” or promote acting illegally first then asking forgiveness later. It also explains why the constitutional theories fail both as interpretations of the American Constitution and as pragmatic solutions to a paradox of constitutionalism. The chapter discusses justifications for emergency measures that often rely on extreme cases of potential “ticking bombs” in order to justify the use of torture. It argues that constitutional theories cannot justify torture while remaining theories of constitutionalism. It also talks about a key feature of American constitutionalism that includes the existence of limits to the means available to achieve security ends.

Keywords:   constitutional theories, necessity, suicide pact, constitutionalism, ticking bombs, torture, American Constitution

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