Connecticut Law Review Volume 44 – Issue 5

Who Decides on Liberty?

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty.  Tradeoffs between liberty and security often seem unavoidable.  Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer.  But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty?  After all, to make decisions about the appropriate balance between security and liberty implies that a decision-maker be an expert not only about security, but also about liberty.  Otherwise, the idea of a balanced tradeoff is empty; either citizens and courts have non-exclusive authority to decide on both, or courts must grant executive officials expansive deference on matters of both security and liberty.  This Article argues that the latter proposition is untenable and that, therefore, citizens and courts must have non-exclusive authority to make decisions about both national security and individual liberty.  But nowhere in American constitutional traditions and practice can we find unchecked executive authority over matters of liberty.  As a consequence, we should expect institutionally allocated authority over both liberty and security.  Apart from the special knowledge citizens and courts might have about particular matters of liberty, an interest in allocating authority over questions of liberty is in part justified by the harms of concentrated decision-making a polity seeks to avoid.  Advocates of unbounded executive authority argue that concern over tyranny is a phobia.  Against this view, this Article argues that far from emotional responses to crises, American constitutional culture disperses authority over both liberty and security as a constitutive feature of constrained political practice.

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