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Judging Necessity: Democracy and Extra-legalism

^* To whom correspondence should be addressed. E-mail: lfeldman{at}darkwing.uoregon.edu.

	Abstract

This article probes the relationship among constitutionalism, extra-legal prerogative power, and citizen judgment. While much has been written about the nature of Lockean prerogative, and while his theory serves as a direct inspiration for contemporary "normative extra-legalists," key participants in the debate over emergency powers, less attention has been paid to how the people judge prerogative. Attention to this issue is useful because an examination of the process of political judgment of extra-legalism in Locke leads to a complication of the current extra-legalist vision of democratic mechanisms of accountability. The author argues that the extra-legal approach is right to consider the role of democratic publics in potentially constraining the exercise of emergency powers but wrong to formulate that role as one extra-constitutional power checking another extra-constitutional power. The author situates both prerogative power and citizen judgment of it at the threshold of the constitutional order.

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