Can “Necessitous Men” Ever Be Politically Free?

This chapter begins with an account of necessity's story. It illustrates the moment of receding crisis in American life that produced Franklin Roosevelt's warning that “necessitous men are not free.” The chapter explains how necessity can produce dictatorship, because the people are willing to allow whatever it takes to solve their immediate needs. It looks into the theory that a president might suspend the constitutional order like a Roman dictator in order to post hoc political accountability. It also analyzes the misguided belief that constitutional systems can function in the so–called “states of exception,” which misconstrues the relation between rules and exceptions. The chapter explains “rule skepticism” that results from believing that if rules do not determine responses to new applications then rules cannot function as constraints.

Normalizing Necessity: From Scrutiny to Exigency

This chapter investigates the concept of the greater the governmental need the better the justification for intruding upon baseline rights and liberties. As an example, it explains that a legislature may have license to pursue a compelling need by means claimed necessary even while deviating from strict protection of a constitutional right. It explains how necessity can enhance or diminish the scope of pre–existing powers of a defined government office, such as granting a president confronting a military emergency with wide discretionary latitude to act with enhanced executive powers without having to claim new ones. The chapter also assesses how channeling executive discretion into a judicial doctrine of “exigency” enhances the scope of government action in relation to a protected right. It focuses on counterterrorism surveillance practices, which argues that the existence of exigency doctrines provides ways to normalize necessity in everyday governing practice.

Constitutional Emergencies Inside and Out

This chapter considers a family of constitutional theories that advocate for an internal principle of necessity. It looks at factors that argue constitutional constraints that can become a “suicide pact” or promote acting illegally first then asking forgiveness later. It also explains why the constitutional theories fail both as interpretations of the American Constitution and as pragmatic solutions to a paradox of constitutionalism. The chapter discusses justifications for emergency measures that often rely on extreme cases of potential “ticking bombs” in order to justify the use of torture. It argues that constitutional theories cannot justify torture while remaining theories of constitutionalism. It also talks about a key feature of American constitutionalism that includes the existence of limits to the means available to achieve security ends.

Identity, Freedom, and Constitutional Constraint

This chapter reviews the commitment to constitutional values as a constitutive feature of political identity in American constitutionalism. It argues that a person has the ability to choose its own character as well as the actions that constitute that character. It looks into Hannah Arendt's suggestion that even if the “affairs of men” are “ever-changing,” some can change substantially without affecting the meaning of the whole while others are more central to the entire enterprise. The chapter talks about the end of the Reconstruction Amendments that altered the very fabric of American constitutionalism and the identity of the American people due to the reinstatement of a constitutional basis for slavery. It also highlights the long history of constitutional understandings that has woven a fabric of rights protections in both domestic and international law that stand against the use of cruelty as a means of criminal procedure.