Publication Date
2012
Publication Title
Public Law & Legal Theory
Abstract
During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals do not translate into robust and empirically defensible generalizations for twenty-first-century security decisions. Structural constitutionalism thus cannot serve as a foundation for heuristics or shortcuts in the judicial consideration of new security measures. To the extent courts properly pass on the legality of counterterrorism policies, judges should rely instead on the ordinary tools of doctrine, statutory construction, and fact finding. The ensuing jurisprudence of counterterrorism would look much more like ordinary public law.
Number
399
Recommended Citation
Aziz Huq, "Structural Constitutionalism as Counterterrorism" (University of Chicago Public Law & Legal Theory Working Paper No. 399, 2012).
Additional Information
Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere.