ABSTRACT
In disputes about constitutional rights, the scope of asserted harms is broad: terminal illness, bedroom intrusions, death-row phenomenon, incursions on private property, offensive publications. The term 'no harm' says too much, for as long as there is insufficient harm to warrant a finding of a violation of a constitutional right, it is unnecessary to determine whether there is 'not enough harm' or 'absolutely no harm'. A harm need not have materialized in order to be called 'sufficient'. In this section we will examine how the sheer risk that harm may occur may itself be deemed to constitute sufficient harm for purposes of deciding whether there has been a violation of a constitutional right. From that perspective, the relevance of judicial deference is that it entails a substantive choice already adopted by some other branch of government. No alternative formulations are required for the claimant, who always argues that there is a relevant constitutional right.
