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

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

(p.164) 5 Who Decides? Interpretation, Balance, and the Role of Courts
Overcoming Necessity

Thomas P. Crocker

Yale University Press

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

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