without regard to constitutional restrictions abroad are allowed to join more
fully in law enforcement eVorts at home’’ (Smith 2004 , 2 ).
If we return to the initial observations of Dicey and Pound with which this
chapter began, from at least the seventeenth century forward, there have been
repeated contestations over the rule of law in the very countries mostly closely
associated with its modern defense. Dicey’s 1915 edition of anIntroduction to
the Study of the Constitution lamented what he took to be a weakened
practical distinction in Britain between government under the rule of law
in which every man is ‘‘subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals’’ and a regime in which persons in
authority exercised ‘‘wide, arbitrary or discretionary powers of constraint’’
(Dicey 1915 , 183 ). When Roscoe Pound updated Dicey’s observations in 1934 ,
he noted as signiWcant the fact that Britain’s highest judicial body had held
that ‘‘in an appeal from administrative action to an administrative reviewing
tribunal what had been regarded as the most ordinary requirement of a
judicial appeal does not obtain. The tribunal may act on a secret inspection
by an inspector who makes a secret report which the appellant may not see,
may not criticize or contradict and may not explain by independent evidence
or extrinsic argument’’ (Pound 1934 , 466 ). Pound argued that because of
America’s constitutional requirement of due process of law its courts had not
‘‘gone so far.’’ The due process requirement was in Pound’s view too deeply
entrenched in the American political psyche to be likely to disappear.
However, in the post- 9 / 11 US ‘‘war on terrorism’’ the scope of applicability
of the Fifth and Sixth Amendments to the American Constitution, which
ensure due process and a speedy public trial and whose protections refer to
‘‘persons,’’ not just US citizens, have been severely challenged. Civil liberties
are considered by some more malleable than sacrosanct, and it has been
suggested that the ‘‘present contours’’ of those protections conferred by the
American Bill of Rights, ‘‘having been shaped far more by judicial interpret-
ation than by literal text (which does not deWne such critical terms as ‘due
process of law’ and ‘unreasonable’ arrests and searches), are alterable in
response to changing threats to national security’’ (Posner 2001 , 46 ;Yoo
2004 ; Yoo and Delahunty 2002 ; Gonzales 2002 ; Powell 2002 ). Perhaps most
disturbing is the resurgent debate among American legal scholars over
whether space may be found within the Constitution and the rule of law
where the implementation of torture is not debarred and proposals for
formulating an actual ‘‘policy’’ on the use of torture might be contemplated
(Dershowitz 2002 , 136 ; Kreimer 2003 , 282 ). Such a debate ensures that
constitutionalism and the rule of law 329