ABSTRACT
Conventional wisdom among constitutional lawyers fits this picture; it holds that courts defer heavily to government in times of emergency, either by upholding government's action on the merits, or by ducking hard cases that might require ruling against the government. Minimalism is a valuable perspective on constitutional adjudication generally, but it is not an alternative to the choice between deferential review and civil libertarian review. Sunstein has introduced an issue that is actually unrelated to the issue of deference versus nondeference; the tangential issue is whether judges should proceed through wide and deep rulings or through narrow and shallow ones. In principle, either the theory of emergency politics or the theory of judicial review during emergencies might be detached from the other and offered separately. The general framework for our position is the tradeoff thesis. With other scholars, people argue that there is a tradeoff between security and liberty.
