Questioning Deference

Abstract

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary and quite deliberate expansions of executive power at the expense of civil liberties. Executives typically cause such expansions by magnifying the perceived threat of harm, in turn skewing risk perception and making it easier to justify broad and ill-defined grants of power. The paper further examines psychological principles of accountability - i.e., research regarding the effect on decision-making of the expectation that one must account to others. It concludes that psychological research on accountability supports rigorous judicial review of executive actions infringing civil liberties in times of crisis.

Keywords: National security, civil liberties, constitutional law, judicial review, risk assessment

JEL Classification: K19, K39, K49