CONSTITUTIONS, RULE FOLLOWING, AND THE CRISIS OF CONSTRAINT
We diagnose a paradox said to exist for liberal constitutionalism. Constitutional rules seemed to fail to constrain in times of expediency or under conditions of necessity, occasions when constraints might be most needed. From this failure, a form of rule skepticism seems to undermine liberal constitutionalism's claims to govern and constrain official behavior, especially during times of emergency. On closer inspection, we identify three different forms this purported rule skepticism might take: contestation over rule applications, skepticism about rule determinations, or rule cynicism. We resolve the apparent paradox by demonstrating how rule skepticism is either unwarranted or cynically deployed, but in neither case raises a legitimate challenge to liberal constitutionalism.
Thomas P. Crocker & Michael P. Hodges, CONSTITUTIONS, RULE FOLLOWING, AND THE CRISIS OF CONSTRAINT, 24 Legal Theory 3–39 (2018).