Constitutional reason in an age of terror

Abstract

Terrorist crimes acquire their terrorist status by virtue of their attacks on the constitutional settlement. Extra-constitutional means are used to secure political objectives. The other constitutional challenge prompted by terrorism is that it prompts the polity to consider what of value needs protecting. This goes not merely to the material safety of their citizens, but also to the ideals which underlie and justify institutional power within any constitutional polity. Terrorism provokes, thereby, deep processes of constitutional self-identification where polities consider what constitutions are for and whether this should be revisited. The United States and European Union responses to 11 September reveal, therefore, radically different visions of Human Freedom and Political Community: each of which provokes its own possibilities and problems. In the United States a vision of freedom as political citizenship has emerged. It involves the right of all US citizens to participate as equals in a collective public space with the structures integral to the protection and constitution of this public space becoming increasingly sacralised. This has led to a regeneration of political debate within the United States, but also to concerns about civil liberties, increasing mistrust of the political activities of foreigners, and increasing use of long-arm jurisdiction. The central vision of freedom developed by the European Union conceives of it as the enjoyment of a particular standard and style of life. This is a socio-economic concept concerned with the entitlements individuals enjoy in their everyday lives, and with protection of those communities and processes that give rise to these individuals. The processes of marginalisation emerging within the European Union centre far more around the socio-economic risk that an individual poses to a way of life: in a many ways a more pervasive and problematic form of boundary-drawing than categorising individuals according to the political risk they pose