CONSTITUTIONS, RULE FOLLOWING, AND THE CRISIS OF CONSTRAINT

We diagnose a paradox said to exist for liberal constitutionalism. Constitutional rules seemed to fail to constrain in times of expediency or under conditions of necessity, occasions when constraints might be most needed. From this failure, a form of rule skepticism seems to undermine liberal consti...

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Bibliographic Details
Published inLegal theory Vol. 24; no. 1; pp. 3 - 39
Main Authors Crocker, Thomas P., Hodges, Michael P.
Format Journal Article
LanguageEnglish
Published New York, USA Cambridge University Press 01.03.2018
Subjects
Authoritarianism
Constitutional law
Constitutionalism
Constitutions
Counterterrorism
Cynicism
Decision making
Federalism
Flexibility
Judicial reviews
Madison, James (1751-1836)
Metadata
National security
Obama, Barack
Politics
Presidents
Privacy
Skepticism
Surveillance
Torture
Trump, Donald J
Vermeule, Adrian
United States > US
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Summary:We diagnose a paradox said to exist for liberal constitutionalism. Constitutional rules seemed to fail to constrain in times of expediency or under conditions of necessity, occasions when constraints might be most needed. From this failure, a form of rule skepticism seems to undermine liberal constitutionalism's claims to govern and constrain official behavior, especially during times of emergency. On closer inspection, we identify three different forms this purported rule skepticism might take: contestation over rule applications, skepticism about rule determinations, or rule cynicism. We resolve the apparent paradox by demonstrating how rule skepticism is either unwarranted or cynically deployed, but in neither case raises a legitimate challenge to liberal constitutionalism.
ISSN:1352-3252
1469-8048
DOI:10.1017/S1352325218000046