Posted: May 2, 2005
e live in a world of treaties, international law, and global organizations that have become so numerous and so acronymic that they recall the early days of the New Deal. And it seems more and more that other nations, friendly or not, along with motley organizations and activists, seek to exploit these laws and institutions to constrain American policy.
United Nations Secretary-General Kofi Annan and the leaders of France and Germany argue that America's invasion of Iraq runs counter to the U.N. Charter. Human rights groups claim that the Bush Administration's war against al-Qaeda violates human rights treaties. Courts of the World Trade Organization (WTO) rule against American tariffs on steel imports. The United States is criticized first for terminating the Anti-Ballistic Missile Treaty with Russia, then for refusing to join the International Criminal Court (ICC), and now is under renewed pressure to enlist in a climate control pact.
Even the U.S. Supreme Court has taken to citing foreign and international rulings in recent decisions barring the execution of juveniles and the mentally retarded, and striking down a Texas anti-sodomy statute.
Those interested in American politics and law once might have ignored the world of international law and organizations. Many probably once shared George Kennan's view that a "legalistic-moralistic approach to international problems" cannot work because of the "chaotic and dangerous aspirations" of other nations. At the very least, the failure of the League of Nations to stop the Nazis, or of the U.N. to arrest the Soviet challenge during the Cold War, suggested that "realism" was the order of the day—that nations, the primary actors in international politics, pursue policies designed to promote their security, and that military, economic, and political power are the means of doing so.
But even as the U.S. fought its enemies, it pressed upon its allies integration through international law and institutions—first on the victorious World War II coalition that became the U.N.'s Security Council, then in Europe through NATO and the European communities (now Union), and later via the General Agreement on Tariffs and Trade. Though at first these policies may have been clearly in the U.S. interest, we should have been more careful what we wished for, because our idealistic enterprise has returned with a vengeance.
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A realist might conclude that our competitors and allies, now free from the threat of Soviet invasion, are turning international law against us, employing it as just another tool of international politics, and a cheap one at that. But Jeremy Rabkin's new book, The Case for Sovereignty: Why the World Should Welcome American Independence, gives America's critics and rivals more credit. Unlike many who write in the field of international relations and law these days, Rabkin, a professor of political science at Cornell, has a deep knowledge of American constitutional history and political theory. To him, the conflict between the U.S. and supporters of international law and organizations concerns not merely power and raw national interest, but also ideology. Rabkin shows that the current contest between the United States and other nations who would rely on international law and institutions is not just the effort of middling nations to restrain the world's only remaining superpower through rhetoric and non-military means. It is a competition driven primarily by ideology and belief.
Centuries of murderous interstate warfare have led Europeans to seek to bury nationalism within broader supranational entities, a tendency that has disabled their confederation from exercising real national-security powers. As a result of their antagonism to independent sovereign states, Rabkin writes, "Europeans are prepared to cede vast governing power to 'common' institutions, but the different peoples of Europe do not trust each other enough to organize themselves into a single state." Europeans have "learned how to coordinate without compulsion, taking over basic law-setting responsibilities from actual governments without any of the threatening aspects of state power." In effect, Europeans attribute their postwar success to international law and institutions, not the aid and protection of the U.S., and thus want to export the former, and restrain the latter, everywhere. Rabkin notes that Europe "is already so diverse, it can see its governance techniques as almost universal—or as an embryo of a pattern of governance that can be global."
But European-style global governance conflicts fundamentally with the principle of national sovereignty. Drawing expertly on the framers' thinking, Rabkin defines sovereignty as a government's "capacity to enforce" its wishes over a defined territory, its ability to protect its people against outside invasion, and a people's "control of force" by the government. "Sovereignty appeared as a way of ordering and constraining political life," Rabkin argues. "It insisted that law and force must be joined, and that power to command must be linked with the power to protect—especially against outsiders." The framers enshrined this understanding in the Constitution by creating a federal government of limited, enumerated, and separated powers that could provide for the common defense, but that did not answer to any legal authority higher than the American people. To Rabkin, the Constitution is the very expression, if not perfection, of sovereignty.
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Advocates of global governance believe that sovereignty, particularly of the American kind, stands in the way of more effective world cooperation and harmony. Louis Henkin, the dean of American international law professors, has even called on scholars to banish sovereignty as the "S word." For Rabkin, such ideas are dangerously utopian. American military and economic power, not international law and institutions, defeated Germany and Japan in World War II, attained victory over the Soviet Union in the Cold War, sponsored the peaceful spread of democracy to Europe and Asia, and ended human rights abuses from Haiti to Iraq. People can find security only in sovereign states—which draw their political legitimacy from the protection they provide—not in international organizations like the United Nations, which lacks an army and whose actions are subject to the vetoes of France, Russia, and China. If the U.S. were to place its security in the U.N.'s hands, not only would it lose its national character, Rabkin suggests, but the world would suffer, too.
Instead, Rabkin offers a distinctively American suggestion for foreign policy. On the one hand, "internationalists" believe the U.S. should wield its influence to build durable international organizations that will outlast its own predominance. Many if not most international law professors, and more than a few officials in the State Department bureaucracy, fall into this camp. On the other hand, "imperialists" want the U.S. to use its power to reorder the world for our own and the world's benefit. It might not be wrong to count William Kristol and Robert Kagan in this camp, along with the writers of President Bush's Second Inaugural address. Rabkin, however, suggests a third path, one built upon the Declaration of Independence and the Constitution. These documents, which create for Rabkin the principle of "constitutional integrity," prevent any international law, commitment, or institution from exercising authority superior to our founding documents.
If international law or institutions were permitted to become a policy-making forum, the American people would lose their connection to their government and its founding principles. We would no longer be a nation. For this reason, Rabkin writes, "The United States needs to safeguard its sovereignty in order to safeguard its own form of government. It is not simply a matter of legal technicalities. It is about preserving a structure under which Americans—in all their diversity, with all their rights, and all their differences of opinion—can live together in confidence and mutual respect, as fellow citizens of the same solid republic." So, Rabkin seems to say to our diplomats, cooperate all you like, but always remember that the United States, because of the primacy of its Constitution, has the right to ignore international law or withdraw from its institutions.
Although Rabkin probably would not view things this way, we can understand the conflict between the Constitution and international cooperation by returning to a similar struggle— that of the New Deal. As the standard account goes, constitutional law at the turn of the last century remained stuck in a pre-nationalized, agrarian economy. The national government did not have the constitutional authority to regulate the economy in regard to unemployment, poverty, or the conditions of labor. This understanding was shared by the Supreme Court, which still followed the Lochner case, which prevented regulation of wages and hours, and the Child Labor Cases, which limited federal control to interstate commerce. The view was also shared by the Democratic Party.
In response to the Great Depression, FDR and the Democrats swept into office and enacted a national recovery program, which established the modern regulatory state: broad federal power to manage the national economy, including legislative power delegated to independent agencies effectively removed from political control. In 1934-35, the Supreme Court resisted this new approach and invalidated several New Deal statutes. But, emboldened by a landslide victory in the 1936 elections, Roosevelt responded with his famous court-packing plan, attempting to change the Supreme Court's direction by expanding its size. In the "switch in time that saved nine," the Court reversed course and approved the basic elements of the New Deal state.
The justices had acted in a politically astute, but legally unprincipled, manner in order to avoid political damage to the Court, permitting a bloodless constitutional revolution without constitutional amendments. Because of the Court's blatantly political change in doctrine, the New Deal's legitimacy remained questionable, especially to those who wished to restrict the Commerce Clause, like Justice Clarence Thomas, or to those who believed that elements of the administrative state were unconstitutional, like Justice Antonin Scalia.
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Globalization today presents the same challenges, and raises the same constitutional questions, as nationalization did a century ago. More than just the spread of market capitalism throughout the world, globalization is an acceleration in the speed of communications, computer networks, and transportation systems that makes possible the global dissemination of news, political concepts, and values. Like nationalization, globalization has good and bad effects. It can lower prices and raise living standards, but it also can allow problems to spread quickly to a global level. Epidemics, crime, transboundary pollution, and illegal trafficking in drugs or human beings all may arise from globalization. To take a concrete example, the September 11 hijackings would have been impossible without the easy international movement of people and money.
Just as the economy's nationalization created demand for federal regulation, so globalization has increased the desire for governance at the international level. The WTO, for instance, reduces national trade barriers in much the same way that the "dormant commerce clause" freed interstate trade from state restrictions. International environmental regulations seek to address the negative externalities of pollution or species extinction in the same way federal statutes do.
To achieve these ends, international regulation has mirrored the legal foundations of the regulatory state: expanded jurisdiction and independent, supposedly neutral, institutions. The Kyoto accords would limit all energy use, whether subject to congressional or state regulation. Human rights conventions hold both federal and state officials liable to standards that meet or exceed constitutional requirements. Whether regulation occurs under the Treaty or the Commerce Clause, the constitutional questions remain the same: What is the appropriate scope of federal power? What relationship must private conduct have with the subjects of public regulation? How do we respect the reserved powers of the states?
Congress has delegated substantial legislative authority to administrative agencies, which are shielded in various ways from direct presidential control. But such agencies are of doubtful constitutionality precisely because of these attributes. Only by maintaining a non-delegation doctrine and making all executive officers responsible to the president could the administrative state be rendered democratically accountable and consistent with the separation of powers. International organizations, intended to address similar problems, raise the same issues. The WTO, ICC, and International Court of Justice (ICJ) suffer from accountability problems and democracy deficits precisely because they are designed to be neutral and independent of the control of any nation or nations.
This is not to argue that all such institutions possess these faults, or that all international regulatory agreements violate the Constitution. Indeed, many of these efforts were initially proposed by the U.S. But it points to the need to begin the larger task of developing constitutional doctrines that will allow the U.S. to participate in international bodies and laws where these provide distinct benefits.
Much of Rabkin's book argues that the benefits of global governance are a fraud, even as historical and economic scholarship has questioned whether the New Deal really had much to do with ending the Great Depression. Nonetheless, it seems clear that international cooperation does benefit the U.S., although certainly not in the exaggerated ways claimed by its champions. Sometimes despite itself, The Case for Sovereignty starts us on the path to understanding how we can regulate globalization consistent with the Constitution. Armed with a better understanding of the Constitution, perhaps we will arrive at more principled answers than the ones improvised in the New Deal almost 70 years ago.