Thomas P. Crocker, "Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism" (Yale UP, 2020)
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What is the central dilemma of constitutionalism and emergency powers that Thomas Crocker explores?
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Hello, and thanks for joining us for this episode of New Books and Philosophy, which is part of the New Books Network. I'm Robert Talese. I'm professor of philosophy at Vanderbilt University. I co-host the program with Carrie Figder, Alexis McLeod, and Sarah Tyson. My guest today is Thomas Crocker. He is the professor of law at the University of South Carolina Law School. His research focuses on constitutional law, constitutional issues pertaining to national security, as well as issues about free speech and democracy. His new book has just been published with Yale University Press. It's titled Overcoming Necessity, Emergency, Constraint, and the Meanings of American Constitutionalism. A core duty of government is keeping the people it governs safe.
However, in modern democratic states, the government is structured by a constitution, which establishes constraints and checks on the power of any political office. Still, emergencies, from natural disasters to terrorist attacks, often call for a swift response that presses against those constraints and checks. In the United States, government, and the president in particular, has claimed authority to do what's necessary to secure and protect the American people. Can these claims be squared with a commitment to the Constitution? So in this fascinating book, Thomas Crocker explores the various ways in which claims that emergency grants to the president exceptional and extra legal powers have been understood within the context of constitutionalism.
Are constitutions suicide pacts? Does the fact that executive power must expand to meet emergencies mean that we should take up a skeptical view about constitutions and constitutional constraints as such? So as usual, there's a whole lot to talk about. But before we get to talking about the book, why don't we begin as we normally do with our guest.
Hi, Tommy. Hi, Rob. Thanks for having me on.
Hey, no problem. Thanks for joining me. We usually begin these discussions with me asking the author to say a little bit about him or herself. So, Tommy, why don't you tell us a little bit about yourself?
Great. Thank you, Rob. In addition to being a law professor, I also have a background in philosophy, having done a PhD in philosophy in your department.
It's true.
So after that, I taught at the Liberal Arts College briefly before pursuing my interest in law. I'm originally from Memphis, Tennessee. I come from a working class background, which makes it a little less typical to have packed on so much academic education, having decided to do both philosophy and law. But I was motivated to go to law school while teaching at a liberal arts college when Bush v. Gore happened.
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Chapters
8 chapters
1
What is the central dilemma of constitutionalism and emergency powers that Thomas Crocker explores?
0:00–5:57
2
How does Crocker’s background in philosophy and Wittgenstein shape his view of legal concepts?
5:57–12:40
3
Why do scholars claim that constitutions act like ‘suicide pacts’ during crises?
12:40–20:55
4
What are the main arguments of the Schmittian “constitutional dictatorship” critique?
20:55–29:03
5
How does the book propose a “completion power” for the President to fill legal gaps in emergencies?
29:03–36:29
6
What role do tiered scrutiny and proportionality play in normalizing necessity?
36:29–44:58
7
How does Bernard Williams’ notion of necessity illuminate moral character in constitutional decisions?
44:58–54:20
8
What practical implications does Crocker suggest for future presidential conduct and accountability?
54:20–1:02:33
Speakers
3 identifiedMore from New Books in Philosophy
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