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Cass R. Sunstein Fear and Liberty IN TR O DUCTIO N When a nation’s security is threatened, are civil liberties at undue risk? If so, why? Consider a plausible account. In the midst of external threats, public overreactions are predictable. Simply because of fear, the public and its leaders will favor measures that do little to protect security but that compromise important forms of freedom.1The intern­ ment of Japanese-Americans during World War II is perhaps the most salient example, but there are many more. Consider, for example, the McCarthy period, restrictions on dissident speech during World War I, Lincoln’s suspension of habeas corpus during the Civil War, and the imposition of martial law in Hawaii in 1941. Many people believe that some of the actions of the Bush administration, in the aftermath of the September 11 attack, fall in the same basic category. Is it really neces­ sary to hold suspected terrorists in prison in Guantanamo? For how long? For the rest of their lives? In explaining how public fear might produce unjustified intru­ sions on civil liberties, I emphasize two potential sources of error: the availability heuristic and probability neglect. The availability heuris­ tic, widely used by ordinary people, can lead to a grossly exaggerated sense of risk, as salient incidents make citizens think that a risk is far more serious than it actually is. When probability neglect is at work, people focus on the “worst case” and disregard the question whether it is likely that the worst case will occur—an approach that can also lead to excessive regulation. With an understanding of the availability heuristic and probability neglect, I believe that we are able to have a better appreciation of the sources of unsupportable intrusions on civil social research Voi 71 : No 4 : W inter 200 4 967 liberties. But there is an additional factor, one that requires a shift from psychological dynamics to political ones. In responding to security threats, government often imposes selective rather than broad restric­ tions on liberty. Selectivity creates serious risks. If the restrictions are selective, most of the public will not face them, and hence the ordinary political checks on unjustified restrictions are not activated. In these circumstances, public fear of national security risks might well lead to excessive restrictions of civil liberties. What is necessary, then, is a set of safeguards that will insure against those restrictions. In constitutional democracies, some of those safeguards are provided by courts, usually through interpretation of the Constitution. The problem is that courts often lack the information to know whether and when intrusions on civil liberties are justified. Civil libertarians neglect this point, tending to think that the meaning of the Constitution does not change in the face of intense public fear. This view is implausible. The legitimacy of government action depends on the strength of the arguments it can muster in its favor; and if national secu­ rity is genuinely at risk, the arguments will inevitably seem, and will often be, unusually strong. In the context of safety and health regulation gener­ ally, cost-benefit analysis is a partial corrective against both excessive and insufficient fear; and sometimes courts can use a form of cost-benefit anal­ ysis as a check on overzealous and inadequate regulation. When national security is threatened, cost-benefit analysis is far less promising, because the probability of an attack usually cannot be estimated. But this does not mean that courts cannot play a constructive role. I suggest three possible approaches. First, courts should ordinarily require restrictions on civil liberties to be authorized by the legislature, not simply by the executive. Second, courts should give more skeptical scrutiny to measures that restrict the liberty of identifiable minorities, simply because the ordinary political safeguards are unreliable when the burdens imposed by law are not widely shared. Third, case-by-case balancing, by courts, might well authorize excessive intrusions into liberties—and hence clear rules and strong presumptions, for all their rigidity, might work better than balancing in the actual world. 968 social research EXCESSIVE FEAR Why might the public show excessive fear, in a way that leads to unjus­ tified responses to external threats or risks...

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