Avi Siegal (Yale University – Law School) has posted Framing Constitutional Necessity on SSRN. Here is the abstract:
Necessity has no law is an ancient, fearsome maxim. By supposing that law must give way whenever necessity so requires, the maxim appears to undermine any government of laws. The very ambivalence of the term necessity risks tyrannical abuses, enabling end-runs around institutional constraints under the convenient cover of “saving the country.” Yet necessity is pervasive in moral, political, and legal life. The American people can no more escape necessity than they can escape their Constitution.
This Article analyzes necessity as an independent concept in the constitutional discourse surrounding the Founding. The writings of influential jurists, the text of the Constitution, the debates over ratification, and case law in the Republic’s first few decades collectively demonstrate that the generation of the Framing widely perceived the Constitution as integrating the law of necessity. Both fundamental laws were understood to be willed by the popular sovereign. This conclusion illuminates the meaning of McCulloch v. Maryland, which may stand for the proposition that constitutional law and the law of necessity cannot conflict. It clarifies the foundations of constitutional vexations like administrative law, strict scrutiny, and Lincolnian wartime measures. And it indicates that, historically speaking, judicial duty is not to dismiss constitutional claims of necessity out of hand but rather to scrutinize whether the asserted necessity is real.
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