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

Who Decides? Interpretation, Balance, and the Role of Courts

Who Decides? Interpretation, Balance, and the Role of Courts

Chapter:
(p.164) 5 Who Decides? Interpretation, Balance, and the Role of Courts
Source:
Overcoming Necessity
Author(s):

Thomas P. Crocker

Publisher:
Yale University Press
DOI:10.12987/yale/9780300181616.003.0006

This chapter highlights arguments on the trade-off thesis, which is fundamentally flawed. It emphasizes how deference to the president is inconsistent with a constitutional tradition that preciously guards decisions about liberty. It analyzes the core idea of constitutional trade-off that lacks a conception of how to compare values or how to describe what specific liberties must give way for something to gain in security. The chapter also illustrates the extent of gains and losses that are made in liberty or security and through processes of democratic deliberation that comport with American constitutionalism rather than reflexive claims that necessity requires a trade-off. It points out the ways of justifying extreme counterterrorism policy, which argues that necessitous circumstances require trade off in liberty for greater security.

Keywords:   trade-off thesis, constitutional tradition, constitutional trade-off, democratic deliberation, American constitutionalism, counterterrorism policy, liberty

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.