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The dismantling of the rule of law in the United States: systematisation of executive impunity, dispensation from non-derogable norms, and perpetualisation of a permanent state of emergency

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dc.contributor.advisor Sarkin, Jeremy Julian
dc.contributor.author Alford, Ryan Patrick
dc.date.accessioned 2015-08-13T14:01:02Z
dc.date.available 2015-08-13T14:01:02Z
dc.date.issued 2014-06
dc.date.submitted 2015-08-13
dc.identifier.citation Alford, Ryan Patrick (2014) The dismantling of the rule of law in the United States: systematisation of executive impunity, dispensation from non-derogable norms, and perpetualisation of a permanent state of emergency, University of South Africa, Pretoria, <http://hdl.handle.net/10500/18905> en
dc.identifier.uri http://hdl.handle.net/10500/18905
dc.description.abstract Scholars of human rights and constitutional law have described in great detail the abuses perpetrated by the armed forces and secret services of the United States in the context of the ‘war on terror’. There is copious literature explaining why these violations of fundamental human rights are not justifiable, and why they are not consistent with international treaties or that nation’s constitution. This thesis builds upon this research, but strikes out in a new direction. It does so by asking whether these abuses, combined with the changes to the legal order of the United States that made them possible, have produced a qualitative transformation of its constitutional structure. In particular, this thesis tracks the empowering of the executive. Increasingly, whenever it purports to act in the interests of national security, the executive claims the authority to act unilaterally in a manner that overrides even non-derogable rights. These novel constitutional reserve powers, which this thesis demonstrates were derived from President Nixon’s theory of the executive, were used to justify indefinite arbitrary detention, torture, mass surveillance without warrants, and extra-judicial execution. This thesis seeks to determine if the constitutional crisis inaugurated by this theory of executive supremacy over the laws has been terminated, or whether it has continued into the Obama Administration. If this theory is current within the executive branch, and especially if the violations of jus cogens norms has continued, it signifies a cross-party consensus about a paradigm shift in American constitutionalism. Accordingly, given the fact that the abuse of executive supremacy is what led to the development of the rule of law, this thesis will ask the question of whether the United States is being governed in accordance with its basic minimum norms. This thesis explores whether the executive is still subject to checks and balances from the legislature and the judiciary, such that it cannot violate non-derogable rights at will and with impunity. If the contrary proposition is true, it demonstrates that the crisis of the rule of law in the United States is ongoing, and this permanent state of exception demands significantly more scholarly attention. en
dc.format.extent 1 online resource (vi, 459 leaves) en
dc.language.iso en en
dc.subject.ddc 342.62073
dc.subject.lcsh War and emergency powers -- United States en
dc.subject.lcsh Executive power -- United States -- History en
dc.subject.lcsh Rule of law -- United States en
dc.subject.lcsh War on Terrorism, 2001-2009 en
dc.subject.lcsh Human rights -- United States en
dc.subject.lcsh Misconduct in office -- United States en
dc.subject.lcsh Constitutional history -- United States en
dc.title The dismantling of the rule of law in the United States: systematisation of executive impunity, dispensation from non-derogable norms, and perpetualisation of a permanent state of emergency en
dc.type Thesis en
dc.description.department Public, Constitutional, and International Law en
dc.description.degree LLD


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