From the November 2, 2008 National Review
November 2, 2008
by John Fonte
"We are the party of Roosevelt. We are the party of Kennedy," declared Barack Obama in accepting the Democratic nomination. Is that still true? Peter Beinart analyzed the liberal-internationalist tradition in the summer issue of World Affairs, arguing that Wilson and FDR's optimistic vision of liberal internationalism, grounded in collective security and collective peace, confronts a rival Republican vision that he correctly describes as "conservative internationalism" rather than isolationism. The Republican internationalist tradition, from Henry Cabot Lodge to Reagan to McCain (as opposed to the more anti-interventionist Borah-Taft-Paul school), sees the world as a dangerous place. It is less optimistic about human nature and focused more on military alliances than on international institutions, Beinart tells us. Fair enough.
The problem with Obama's oratory and Beinart's thesis is that the traditional framework of liberal internationalism is dying. Liberal internationalism is first of all inter-national, concerned with relations between sovereign nation-states. As practiced by Wilson, FDR, and Truman, liberal internationalism meant American leadership while working with other nations in alliances and in creating new international organizations to promote peace and collective security, such as the United Nations. While they were unquestionably internationalists, those Democrats were also nationalists, pursuing American interests and willing to use force to secure them. While they were mostly Wilsonians, to borrow Walter Russell Mead's formulation, they were also quite willing to employ Hamiltonian (which is to say, economic) and defense-oriented Jacksonian means. Mead specifically mentions the World War II bombing of Japanese and German cities as a Jacksonian turn. In sum, they were national progressives, not transnational progressives.
Today, in the major precincts of mainstream American liberalism, the merely international is passé; the transnational, or global, is ascendant. As John Ruggie of Harvard's Kennedy School of Government puts it, "Postwar institutions including the United Nations were built for an inter-national world, but we have entered a global world. International institutions were designed to reduce external friction, between states; our challenge today is to devise more inclusive forms of global governance."
Typical of leading law-school opinion is a comment in May 2008 by the dean of Georgetown University Law School, Alexander Aleinikoff, who was general counsel of the immigration service under Clinton. Aleinikoff envisions new transnational political authorities above and beyond American constitutional democracy. He writes that we should expect the "development and strengthening of other political institutions—regional, transnational, some global . . . exercising what will be perceived as legitimate legal and coercive authority. . . . That is, a decline in citizenship in the nation-state is likely to be accompanied by new kinds of citizenships associated with 'polities' that tax and spend, organize armies and police, establish courts, and promulgate what are perceived to be binding norms. There is no reason that standard accounts of citizenship that link governance and a people cannot be stated at the appropriate level of abstraction to apply to new forms of political association." Aleinikoff's account may be read as both predictive and normative, an indication that American elites not only believe that our constitutional democracy will be subordinated to global authorities but also desire that this come to pass.
To what extent would an Obama victory mean the replacement of traditional liberal internationalism with transnational progressivism? To be sure, the liberal internationalists are still with us. They include writers such as Beinart, John Patrick Diggins, and Michael Lind, the venerable political scientist Robert Dahl, such foreign-policy practitioners as Richard Holbrooke and Michael O'Hanlon, and even some younger policy wonks at the Center for New American Security who describe themselves as "Truman Democrats." But it is possible that Hillary Clinton's campaign was the last hurrah of liberal internationalism. The Nation noted that Obama's advisers "tend to be younger, more progressive . . . more likely to stress 'soft power' issues like human rights." But it's not the big names that we should watch; rather, we should keep in mind the observation of Gaetano Mosca, the political theorist who argued that an understanding of modern government does not begin with cabinet members (prediction: Lugar at State) but with the second stratum of appointees: the undersecretaries and the deputy assistant secretaries. It is very likely that this lower layer of Obama lieutenants would have internalized the transnational progressives' positions on global governance, international law, shared sovereignty, international norms, and the like.
This would likely have two outcomes: first, a high-profile push to ratify a series of treaties that have been languishing for years; second, a less publicized but equally important initiative to transform (specifically to transnationalize and lawyerize) America's security-defense establishment.
In the name of "rejoining the international community" and exercising world leadership, an Obama administration would probably attempt to ratify some U.N. treaties that directly challenge American sovereignty, including the Law of the Sea Treaty, the Convention on the Rights of the Child, the Convention for the Elimination of All Forms of Discrimination against Women, and the International Criminal Court. Tactically, Obama would probably start with the easier treaties, the Law of the Sea and the Rights of the Child. He could argue that both the current leadership of the U.S. Navy and the Bush administration have supported the Law of the Sea Treaty, and that only the U.S. and Somalia have declined to ratify the Rights of the Child. Joe Biden, with his experience as chairman of the Senate Foreign Relations Committee, would be the perfect point man on U.N. treaty issues, demanding of opponents: "Don't you trust the Navy? Do you want to stand alone with Somalia?"
The Law of the Sea Treaty raises serious national-security concerns. It could subject maritime disputes involving U.S. defense forces to mandatory arbitration by an international tribunal in Hamburg composed of 21 judges, some chosen by the likes of Burma, China, Cuba, and Russia. The former commander of the Pacific Fleet, retired admiral James "Ace" Lyons, said it would be "inconceivable" to "forfeit . . . America's freedom of the seas" to an "unaccountable international agency."
The Rights of the Child Treaty is at odds with the U.S. Constitution. If adopted, it would nullify federalism by requiring uniform penal codes for minors across all 50 states, meaning that Texas and Vermont would have to adopt identical laws governing juvenile offenders. It would abolish the death penalty and life imprisonment under all circumstances for those under 18 and severely curtail parental rights—for example, children would have a legal right to "correspondence" with anyone on the planet without "interference" from their parents. Whatever the particular merits of these issues, Americans should be able to decide for themselves how to raise their children or punish criminals.
CEDAW, the women's-rights treaty, would almost certainly resurface under Obama. Joe Biden led the successful fight in 2002 to get CEDAW out of the Senate Foreign Relations Committee, which he chairs, but it was not brought to the Senate floor because it lacked the necessary 67 votes to pass. Biden argued at the time that the U.S., in positioning itself as a champion of women's rights in the Middle East and across the globe, was morally obliged to ratify the treaty. But in order for the U.S. to be in full compliance with CEDAW, Americans would have to alter our constitutional system, repudiate federalism, and allow U.N. treaty requirements to dictate domestic policies.
Testifying against CEDAW before the Senate, civil-rights lawyer Kathryn Balmforth stated that the U.N. committee monitoring compliance with the treaty "seems oblivious to political self-determination and freely chosen democratic leadership." For example, she noted, the U.N. experts have called for sex-based preferences "in all spheres, public and private, and even for elective offices." CEDAW monitors called on Georgia to return to its Communist-era gender quotas in political offices. Britain has been told to adopt the standard of equal pay for work of "comparable value," as determined by bureaucrats. CEDAW monitors are also concerned that British men are not taking parental leave at the same rate as British women. This might be humorous if it were not for the fact that the American Bar Association and various human-rights lawyers already are planning to use CEDAW to overturn a vast array of federal and state laws that they do not have the votes to defeat through democratic means.
More than any other treaty organization, the International Criminal Court is central to the global-governance project. A key Obama foreign-policy adviser, Sarah Sewall of Harvard's Carr Center for Human Rights Policy, is an expert on the ICC. She has co-edited a book, funded by the MacArthur Foundation, recommending that the U.S. join the court. She writes: "The ICC represents an acid test of America's commitment to international and universal concepts of justice and human rights—its willingness to be bound by the rules it establishes for others." She and co-author Carl Kaysen argue that critics of this transnational court have an outdated conception of sovereignty and that "we have chosen to stand with rogue states in opposition to fundamental norms of international justice."
The U.S. government opposes the ICC because American soldiers could be charged with war crimes and made subject to the court's final jurisdiction by a decision of the ICC's pre-trial chamber, which would supercede our Constitution. Moreover, even though the U.S. is not a party to the treaty, if an alleged "war crime" occurs within a state that has joined the treaty (e.g., Afghanistan), Americans could be prosecuted. To guard against this possibility, Congress passed the American Service Members Protection Act, authorizing military action in the event of such an occurrence. In sum, the ICC is a transnational authority that directly challenges American self-government under the Constitution.
McCain hasn't been a pillar of reliability on this issue, either. In January 2008, the San Francisco Chronicle reported his comments on the ICC as follows: "I want us in the ICC, but I'm not satisfied that there are enough safeguards." Writing in Foreign Affairs, McCain adviser Robert Kagan argues that America has "little to fear" from increased transnational authority and "should not oppose but welcome a world of pooled and diminished national sovereignty." Kagan has it wrong here; diminishing our sovereignty is at odds with American constitutional democracy, and is, of course, a political loser for McCain.
McCain should forthrightly oppose the ICC and other transnational power grabs. He could say: "We support democratic self-government and oppose the ICC because it claims jurisdiction over the citizens of democratic, sovereign states without the consent of the citizens of those states. This means that, besides being concerned with its own interests and citizens, the United States will support the self-government and interests of other democratic states that have not ratified the ICC, including Israel, India, the Czech Republic, and Chile, on the universal grounds of democratic sovereignty."
An Obama administration would seek to transform the culture and ethos of America's soldiers. They would say, "We need to globalize thinking and develop new understandings of the role of international law," which would appear reasonable enough. The subtext, however, would be a call to transnationalize and lawyerize America's security in general and the American military in particular.
To see the future, one should examine the activities of Harvard's Carr Center under the leadership of Sewall (and another prominent Obama supporter, Samantha Power). For years, it has conducted workshops on the crossroads of military doctrine, international law, and human rights. Participants have included former and current high-ranking military officers (Wesley Clark), NGO leaders from Amnesty International and Human Rights Watch (Kenneth Roth), international lawyers, academics, journalists, and activists.
In theory the workshops are for informational purposes. In practice they amount to a political campaign to soften opposition to the International Criminal Court (and transnational law generally) and to ensure that Amnesty International's human-rights perspective becomes that of the American defense establishment. With Obama appointees at the top of the national-security agencies, we could expect an effort to transform what would be characterized as an outmoded, insular military culture.
Sewall gained foreign-policy credibility by participating in General Petraeus's project to develop a new counterinsurgency doctrine. But she declared in a revealing Washington Post article that "Petraeus may provide the ultimate service to the troops and the nation—and seal his legacy—not by winning, but by speaking the truth about Iraq." That truth, she said, was "the likelihood of failure." She wrote a 2008 paper arguing that American national interests represent a "transitional phase" that will ultimately be subordinate to a transnational system.
All indications are that an Obama administration will move beyond traditional liberal internationalism of the Wilson-FDR-JFK variety to transnationalism. Ultimately this means that the evolving norms of international law would trump the U.S. Constitution.
A Harris poll taken for the Bradley Project on America's National Identity (I participated in the project) asked: "When there is a conflict between the U.S. Constitution and international law, which one should be the highest legal authority for Americans?" Sixty-six percent of registered voters preferred the Constitution, 16 percent put international law first, and 17 percent were undecided. The same Harris poll asked: "Do you think of yourself more as a citizen of the U.S. or a citizen of the world?" The result among registered voters: 83 percent American citizens, 12 percent global citizens, 4 percent not sure.
John McCain should clarify the differences between his views on America's role in the world and his opponent's ambiguity on global governance. Although the hour is late, he or a future Congress could stand with the overwhelming majority of the American people by articulating a strong case for constitutional democratic sovereignty. But whether debated in this election or not, the transnational challenge is not going away.
John Fonte is a Senior Fellow and Director of Hudson's Center for American Common Culture.
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