Abstract

http://ssrn.com/abstract=427821
 
 

Citations (2)



 


 



Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime


Samuel Issacharoff


New York University School of Law

Richard H. Pildes


New York University School of Law

July 18, 2003

Theoretical Inquiries in Law, Vol. 5 (2004)
Columbia Law and Econ. Research Paper No. 233
Columbia Public Law Research Paper No. 03-57
NYU School of Law, Public Law Research Paper No. 64

Abstract:     
Times of heightened risk to the physical safety of their citizens inevitably cause democracies to recalibrate their institutions and processes, and to re-interpret existing legal norms, with greater emphasis on security, and less on individual liberty, than in normal times. This article explores the ways in which the American courts have responded to the tension between civil liberties and national security in times of crisis. This history illustrates that courts have rejected both of the two polar positions that characterize public discourse on these issues. Civil libertarians argue that political bodies are too easily gripped by passions, hysteria, and self-interest in these times, and that courts therefore ought to play a central role in protecting liberty. Executive unilateralists argue that the qualities that uniquely characterize the executive branch, such as decisiveness, access to information, and efficiency, must become so dominant in these moments that few checks if any should constrain executive prerogatives. Oddly, civil libertarians and executive unilateralists find implicit consensus in the view that, in times of war, courts have tended not to play a significant role in overseeing executive power. We argue to the contrary: historically, a significant constitutional tradition of judicial scrutiny in this country during times of war does exist. But this scrutiny does not take the form of courts making first-order substantive judgments about the content of liberty or other claimed constitutional rights. Nor does it take the form of judicial assessment of how significant or credible the national security claims of the executive branch might be. Instead, judicial oversight has been focused on preserving the institutional structures and processes through which decisionmaking on these issues takes place. The judicial role has centered on the second-order question of whether the right institutional processes have been used to make the decisions at issue, rather than on what the content of the underlying rights ought to be. This approach has historically rejected or resisted most claims of executive unilateralism. When courts have upheld the government's actions, they have done so only after a judgment that Congress as well as the executive has endorsed the action. This approach has also rejected the civil libertarian framework. When courts find bilateral institutional endorsement, they have typically accepted the joint political judgment of how liberty and security tradeoffs ought to be made. By focusing on congressional endorsement of emergency measures, the courts have created a broad-based political accountability for the actions taken in the name of national security. We suggest that even if congressional endorsement is more apparent than real in some of these contexts, the judicial maintenance of this structure of rhetorical justifications sustains desirable understandings of political structure. Because the President and Congress draw from different political constituencies in a presidential rather than a parliamentary system, we also raise questions about whether the American judicial approach to these questions should be limited to political systems with separated executive and legislative powers.

Number of Pages in PDF File: 47

Keywords: national security, civil liberties, constitutional law

JEL Classification: K10

working papers series


Download This Paper

Date posted: July 31, 2003 ; Last revised: December 14, 2012

Suggested Citation

Issacharoff, Samuel and Pildes, Richard H., Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime (July 18, 2003). Theoretical Inquiries in Law, Vol. 5 (2004); Columbia Law and Econ. Research Paper No. 233; Columbia Public Law Research Paper No. 03-57; NYU School of Law, Public Law Research Paper No. 64. Available at SSRN: http://ssrn.com/abstract=427821 or http://dx.doi.org/10.2139/ssrn.427821

Contact Information

Samuel Issacharoff (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
212-998-6580 (Phone)
212-995-3150 (Fax)
Richard H. Pildes
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6377 (Phone)
(212) 995-4341 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 3,073
Downloads: 500
Download Rank: 30,210
Citations:  2

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.359 seconds