In March I attended a conference of the American Constitution Society for Law and Policy at Barry University Law School in Orlando, Florida. There, I presented a paper comparing the UK’s constitutional responses to terrorism with those of America’s.
As most students of Public Law will know, the UK doesn’t have a written constitution. More appropriately, the UK’s constitution is written ie it is comprised of a multitude of written sources such as Acts of Parliament, case law, international treaties etc, it’s just not codified, meaning they aren’t all in one document. In contrast, the Constitution of the United States, dating from 1787, is written and codified. It is also ‘entrenched’ meaning it is very difficult to amend. Article V requires, for example, 3/4 of states of the United States to approve an amendment. Hence, the ongoing issue about failures to curb gun ownership because of the right to bear arms, as per Amendment II of the Constitution.
But in terms of either war or public emergency America’s Constitution is seemingly lacking provisions allowing for its temporary suspension, to protect itself from threats that seek to destroy it. There is one provision, however: in Article 1, section 9, of the US Constitution Congress may suspend the constitutional right of habeas corpus in cases of rebellion or invasion. Abraham Lincoln famously exercised this power during the Civil War in 1861. But was this unconstitutional since it was an act of the President, not Congress? Lincoln countered by saying that he was, in fact, saving the Constitution, not destroying it.
Post 9/11 and the rise of Islamist terror groups such as Al-Qaeda and ISIS, is this limited protection of the Constitution sufficient to prevent terrorists from seeking to destroy it? Perhaps the UK’s ‘uncodified’, ‘flexible’ constitution (as opposed to the ‘rigidity’ of the US’s in allowing amendments in only very limited circumstances – see above) is more suited to reacting to threats that seek to destroy it? Since 2000, the UK has introduced a plethora of statutes addressing the threat of terrorism: the Terrorism Act 2000, the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, the Counter-Terrorism Act 2008, the Terrorism Prevention and Investigation Measures Act 2011 and the Counter-Terrorism and Security Act 2015. The premise of my research was that the US Constitution was too inflexible to counter threats that sought to destroy it, unlike the UK’s flexible constitution. Was the US Constitution, therefore, in a ‘suicide pact’ with the terrorists? But when I started researching this question, it soon became apparent that this was not the case: the ‘form’ a constitution employed did not seem to affect a state’s response to terrorism.
Since 9/11 the US has enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act 2001, which has been reauthorized several times by eg the USA PARIOT Improvement and Reauthorization Act 2005, the USA PARIOT Additional Reauthorizing Amendments Act 2006, the PATRIOT Sunset Extension Act 2011 and the USA Freedom Act 2015. Non-PATRIOT legislation includes the Homeland Security Act 2002, the Intelligence Reform and Terrorism Prevention Act 2004, the Military Commissions Act 2006 and the National Defence Authorization Act 2012. Extra-territorially, the US has also been involved in extraordinary detention, abducting terror suspects around the world, and taking them to detention centres such as Guantanamo in Cuba for ‘enhanced interrogation’ ie ‘torture’. In addition, through their drone programme, the Americans have eg killed notorious terror suspects such as Anwar Al-Awlaki in Yemen in 2010 and, via a special forces operation, have killed Osama Bin Laden in Pakistan in 2011. The President has also issued several Executive Orders pertaining to terrorism: 13224 (2001), 13354 (2004), 13425 (2007) and 13780 (2017). Thus, the conclusion of my paper was that, notwithstanding the apparent limits of the ‘rigid’ US Constitution to protect itself, this has not stopped the Legislative and Executive branches from introducing wide-ranging counter measures at home and abroad to keep Americans safe.
There were several other great papers at the conference. Of these, I particularly enjoyed ‘Verbosity: the Expanding Legacy of the Roberts Court’ by Professor Meg Penrose from the Law School at the Texas A&M University in Fort Worth. Meg was particularly concerned at the length of judgments given by Justices of the US Supreme Court, so much so she had drawn up a code for them: ‘A, B, C’. ‘A’ was for ‘accuracy’; ‘B’ was for ‘brevity’ and ‘C’ was for ‘clarity’. Inaccessible laws are a threat to the Rule of Law, as any Public Law student will know. On the issue of brevity for example, Meg noted that the US Constitution itself was only 4500 words but recent key judgments of the US Supreme Court eg Hamdan v. Rumsfeld (2006) and McDonald v. Chicago (2010) were in excess of 50,000 words – ten times longer than the US Constitution! Indeed, the recent ruling in Obergefell v. Hodges (2015), allowing same-sex couples to marry, was longer than 19 of Shakespeare’s plays! In comparison, one of the most famous cases at the US Supreme Court, Brown v. Board of Education (1954), outlawing states’ racial segregation in schools, was less than 4000 words.
On the issue of Obergefell, another presentation I particularly enjoyed was ‘An Obergefell Right to Military Service Eligibility’ by Professor Eric Merriam of the University of Central Florida. Eric was saying that, traditionally, discrimination in the military – eg age, gender, sexual orientation – was lawful. Perhaps this was due either to deference shown to the military or a particular class in society was simply ‘wrong class, wrong time’. But the current decision of the administration of President Trump to exclude transgender persons, in particular, from being eligible to serve in the military was unlawful, in his opinion, because of the reach of the judgment in Obergefell. Eric noted that he was simply discussing ‘eligibility’ to serve, since taking his argument further the US simply could not afford to fund the rights of all potential Americans from actually serving in the military.
Dr Ian Turner
Reader in Human Rights and Security