LawMeme LawMeme Yale Law School  
LawMeme
Search LawMeme [ Advanced Search ]
 
 
 
 
New Yale Scholarship: The Priority of Morality: The Emergency Constitution’s Blind Spot
Posted by James Grimmelmann on Friday, August 13 @ 00:50:00 EDT Scholarship
David Cole, The Priority of Morality: The Emergency Constitution’s Blind Spot, 113 YALE L.J. 1753 (2004).

(Abstract prepared by James Grimmelmann)

The three principal preventive detention experiences in the United States over the last century all resulted in the mass incarceration of people who turned out not to pose the national security threat that purportedly justified their detention in the first place. Moreover, each campaign was characterized by widespread constitutional abuse. Freed of the ordinary requirement that they demonstrate objective, individualized evidence of dangerousness or flight risk in order to detain suspects, law enforcement officials resorted instead to political association, racial and ethnic identity, and religion as proxies for suspicion.

In light of this history, some searingly recent, Bruce Ackerman's proposal to legitimate the practice of suspicionless preventive detention during emergencies is strikingly ill-advised. History suggests that we ought to do everything we can to restrict suspicionless preventive detention, not to expand it. While individual instances of preventive detention, predicated on objective showings of danger or flight risk, undoubtedly serve an important security function, there is no reason to believe that suspicionless preventive detention serves any legitimate purpose.

At bottom, what is most troubling about Ackerman’s proposal is that in his fascination with the idea of the "supermajoritarian escalator," he never addresses the fundamental normative question presented by his proposal. Putting innocent people who pose no danger behind bars to reassure a panicked public is normatively unacceptable, no matter what "supermajoritarian escalator" has been put in place, and no matter how much we "compensate" them after the fact.

 
Related Links
· More about Scholarship
· News by James Grimmelmann


Most read story about Scholarship:
Why protect privacy? Two theories...

Options

 Printer Friendly Page  Printer Friendly Page

 Send to a Friend  Send to a Friend

Threshold
  
The comments are owned by the poster. We aren't responsible for their content.

Leges humanae nascuntur, vivunt, moriuntur
Human laws are born, live, and die

Contributors retain copyright interests in all stories, comments and submissions.
The PHP-Nuke engine on which LawMeme runs is copyright by PHP-Nuke, and is freely available under the GNU GPL.
Everything else is copyright copyright 2002-04 by the Information Society Project.

This material may be distributed only subject to the terms and conditions
set forth in the Open Publication License, v1.0 or later.
The latest version is currently available at http://www.opencontent.org/openpub/.

You can syndicate our news with backend.php



Page Generation: 0.077 Seconds