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Constitutional Scholar Cautions Against Bending the Constitution to Fight Terrorism 1 - 2 - 3

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Sullivan described the complex application of the constitution with regard to executive orders that overrule the rights of citizens, arguing that the document’s ambiguous role has allowed for it to be intermittently shelved in a state of war.

“Our constitution itself isn’t a fixed set of mechanical rules. It’s a set of broad guarantees that operate on a spectrum from very rule-of-law-like law at one end, to discretionary, policy judgment on the other,” she explained.

Searching for a middle ground between a disposable constitution and an absolutely uncompromising one, Sullivan quoted Justice Robert Jackson’s opinion regarding Japanese internment: “Military expedience may be necessary, but should not be legally ratified, for once a judicial opinion rationalizes such an order…the principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forth a plausible claim of urgent need.”

The Constitution’s de facto “emergency kill switch” may have been necessary in some past situations, but Sullivan cautioned against circumventing the Constitution in the war on terror.
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