Fear and Loathing in Constitutional Decision-Making

112 Pages Posted: 20 Apr 2005

See all articles by Christina E. Wells

Christina E. Wells

University of Missouri School of Law

Abstract

National security crises are particularly difficult on the judiciary. Faced with a threat to the country's integrity, such cases require judges rationally and fairly to weigh this hefty interest against the rights of persons suspected of posing that very threat. Not surprisingly, judges have rarely lived up to this task as many have fallen sway to the same fear and prejudice that gripped the county during these times.

Scholars have written extensively about judicial capitulation to fear and prejudice in such well-known cases as Schenck v. United States, Korematsu v. United States, and Dennis v. United States, with some lamenting the Courts' weakness and others defending the decisions in light of the high stakes involved. However, few, if any, have tried to understand how such decisions came about. Without such an understanding, the debate regarding judicial deference remains unsatisfying, as both sides continue to talk at one another without sufficient consideration of the influences on judges making such decisions.

This article considers the manner in which social and psychological forces affected the judiciary in Dennis v. United States, one of the most famous and most criticized Supreme Court crisis decisions. Specifically, it examines the role that biased risk assessment and prejudice likely played in Dennis. It also examines the role that the Court's legal doctrine played in facilitating those psychological influences and concludes with some thoughts regarding the Court's modern doctrine and its capability of battling against the influence of fear and prejudice in times of crisis.

Keywords: Judicial Review, Constitutional Law, Risk Assessment, Prejudice, National Security

JEL Classification: K10, K19

Suggested Citation

Wells, Christina E., Fear and Loathing in Constitutional Decision-Making. Wisconsin Law Review, 2005. Available at SSRN: https://ssrn.com/abstract=701465

Christina E. Wells (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

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