Edited by Tom Ginsburg and Rosalind Dixon
Chapter 29: Comparative Constitutional Law and the Challenges of Terrorism Law
Kent Roach 1 INTRODUCTION Terrorism has been a main preoccupation for governments and courts since the terrorist attacks of September 11, 2001 (henceforth 9/11). The response of governments, legislatures, courts and international institutions to 9/11 provides a kind of horrible natural experiment of comparative constitutional law and scholarship in action. Book-length studies are starting to appear which examine on a comparative basis common constitutional themes in counterterrorism law such as the limitation of rights (Sottiaux, 2008; Donohue, 2008) and the fate of non-discrimination norms (Moeckli, 2008). Comparative constitutional law as applied to terrorism is becoming an innovative, wide-ranging and challenging field. Some of the most prominent scholarship has stressed that courts have generally deferred to the executive and legislative branches of government in circumstances of real or apprehended emergency such as those caused by terrorism. Building on this historical record, some scholarship has argued that courts should, for reasons of democratic legitimacy and institutional competence, defer to governments (Posner, 2006; Posner and Vermeule, 2007). In order to preserve the law from distortions caused by the exigencies of terrorism, others suggest that courts should avoid confrontations with governments and that governments should be allowed to act in an extra-legal manner (Tushnet, 2003; Gross, 2003). Some have even predicted that 9/11 would demonstrate the ‘futility’ of relying on a bill of rights enforced by courts (Ewing, 2004; Ewing and Tham, 2008), while others have stressed the ‘limits on the judiciary’ (Donohue, 2008: 20). Despite such arguments, courts have not been particularly deferential...
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