Democracy, Constitutionalism and the War on Terror – Amherst College – Speech Notes (Early Draft) – PDF

2004 Democracy Constitutionalism and the War on Terror

Democracy Constitutionalism and the War on Terror

Questions get raised about democracy, the constitution —whether must give

way, stretch, in war on terror—new paradigm

Democracy and terrorism—can

Const and terrorism—first, 4, etc due process

Example of a case

Role of constitution—give fundamental protections


First, fourth, fifth. Sixth, 14


supreme law of land

magna carta

who decides to whom apply and to what extent–
magna carta

Courts—role of—anti majoritarian

International law—
We approved—

geneva, torture, iccpr

International institutions—un oas
We approved

–anti-democratic question–International law—judging our own conduct—


Separate out law and intuitions

Working as part of the international community

Bush took over in situation of some hostility to international law,

accountability etc.

–clinton experience—child soldiers, ICC, refugee convention, juvenile

death penalty, former Yugoslavia war and un

Gitmo back then

Some gains—iccpr; CAT

Reagan and icj

Long hostility to international law and obeying international mandates


But founded UN

Stronger countries not obey international law

Courts–Democracy—anti majoritarian; non democratic—



Balance between popular and core or fundamental rights—

Executive even if elected goes outside

Congress similar

Checks and balances

Magna carta-

Executive under law

Authority under law

Freedom under law

Strong belief in courts as bulwark not acting alone—responsive to a variety of factors—social, international, excesses

Example of all these questions—


What happened

Role of const? who determines—

Const rights


International law


In each admin beyond—