60 Pages Posted: 8 Apr 2008 Last revised: 20 Nov 2008
A perceived national emergency creates the temptation to abandon principled constraints to official action in order to pursue whatever is thought necessary to confront the crisis. Principled constraints are thought good precisely when they are least needed - during normal times - and thought obstructionist when they are most needed to guide and constrain official action - during times of perceived exceptional circumstances. We are accustomed to thinking of constitutional rights not as absolutes, but as subject to balancing against compelling governmental need. When compelling government interest is expressed in terms of necessity, otherwise prohibited actions, such as torture, may be justified in specific circumstances. In this Article, I argue that we should reject the temptation to rely on necessity to justify extralegal responses to emergencies. Moreover, we should also reject the claim that the Constitution contains a core principle of necessity that frees executive officials to act unfettered by other constitutional constraints under some circumstances. One problem with necessity is that it displaces constitutional commitments to constrained action because necessity, not constitutional principle, becomes the ultimate authority for official action. A second problem with necessity is that when it is used to justify the practice of torture, it undermines the liberal conception of the person that grounds the political legitimacy of the State. Finally, when we prioritize necessity, we change how we look at the world in ways that have pervasive legal and cultural consequences for how we employ other constitutional rights. When we rely on necessity to override principled commitments, such as the prohibition against torture, we change our practices and principles, creating the conditions for changing fundamental aspects of our constitutional culture. I argue that although it is always subject to change, our constitutional culture does not support a worldview that legitimates treating persons as objects of torture, and that arguments to change our culture in light of the needs of necessity are insufficient.
Keywords: Constitution, Torture, Necessity, Constitutional Culture, Executive Power, Presidential Power, Rights, Law and Morality
Suggested Citation: Suggested Citation
Crocker, Thomas P., Overcoming Necessity: Torture and the State of Constitutional Culture. Southern Methodist University Law Review, Vol. 61, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1116680