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Saving Sovereignty

John Fonte

American progressives from Woodrow Wilson and John Dewey to Barack Obama and Ruth Bader Ginsburg have long expressed dissatisfaction with what they see as the constraints of an outmoded 18th-century Constitution. For more than a hundred years, progressives have sought to “transform” America, to make the political, economic, cultural, and legal foundation of our constitutional republic (our “regime,” in the Aristotelian-Tocquevillian sense) more statist, more centralized, more regulatory, more “European,” more secular, and less capitalist, less entrepreneurial, less “provincial,” less religious, less “exceptional.”

In the past, progressives lauded the American “common man” and presented their agenda within the framework of the American story. Progressive politicians were dissatisfied with the American Constitution because, in their view, it limited popular sovereignty and thus the will of the American people. They called for more direct democracy, with popular referendums and recalls. Meanwhile, historians of the Progressives put forward populist patriotic narratives. States’-rights and limited-government advocates such as Thomas Jefferson and Andrew Jackson were magically transformed by such academics as Arthur Schlesinger Jr. into protoNew Dealers and proto-Progressives battling “aristocratic” moneyed interests.

Today, that 18th-century Constitution remains problematic for modern-day progressives not because it is insufficiently “democratic” (this is, if anything, a virtue among 21st-century liberal elites) but because it (and majority opinion among the American people) presents serious obstacles to the advance of contemporary (and decidedly progressive) global norms on human rights, the environment, social issues, and economic regulation. The promotion of these global norms through radical new interpretations of international law and, most important, their incorporation into American domestic law is a major project of many American progressives. Hence they are no longer national progressives (in the TR and FDR sense), but transnational progressives.

Their problem is how to circumvent constitutional restraints and stubborn majority opinion on issues such as the death penalty, guns, illegal immigration, and “hate” speech. The answer suggested by President Obama’s State Department legal adviser, Harold Koh, in his earlier career as dean of Yale Law School, is for activist federal judges to incorporate international law directly into American law. Koh writes: “Domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law . . . to advance the broader development of a well-functioning international judicial system.” In this vein, transnational legal theorists are challenging the core framework of the American constitutional regime.

At this crucial period in the conflict over international law and the American Constitution, we are fortunate to have the publication of a powerful new book by law professors John Yoo of the University of California, Berkeley, and Julian Ku of Hofstra. In Taming Globalization, Yoo and Ku articulate a comprehensive defense of the virtues (both principled and practical) of American constitutional sovereignty and thoroughly refute the core legal and normative arguments of the transnationalists.

The book is not polemical, partisan, or political, but a tightly constructed, carefully argued (issue by issue, case by case), comprehensive, and well-reasoned review of the major (and minor) concerns over the interplay of international law and American sovereignty. Yoo and Ku provide an excellent legal history of America’s encounter with international law from the Founding to the present. If one wants a clear and concise explanation of John Marshall’s view of non-self-executing treaties, or James Madison’s opinion of customary international law, or the essence of the Bricker-amendment controversy of the 1950s, or the significance of recent Supreme Court decisions in the counterterrorism cases of Hamdan v. Rumsfeld and Boumediene v. Bush it is all here. Every major Supreme Court case in international law is thoroughly but concisely examined and all the major legal theorists on different sides of the sovereignty divide are heard from.

The core argument of the book runs something like the following. Globalization is a powerful force that is transforming American society. Increased globalization brings many benefits, as well as potential problems, to the U.S. While greater international cooperation will be needed, some aspects of what is called global governance present serious challenges to the American political and legal system. The American polity is built on the principle of popular sovereignty; thus, ultimately, authority and sovereignty reside in the people, not the government. In this sense, American sovereignty differs from traditional Westphalian sovereignty. The people are the principal, and the federal government and state governments are the agents of the people. Popular sovereignty is exercised through the Constitution and particularly through separation of powers and federalism. These devices provide checks and balances on the federal government and limit the authority of both the federal government and state governments. New trends in international law directly challenge American popular sovereignty. The key issue is how to accommodate globalization within the American constitutional system. The task at hand is to ensure that the global rules that we choose to follow are incorporated into American law through our constitutional democratic process. Finally, it is possible to accommodate globalization to popular sovereignty.

To accomplish this goal of obtaining the benefits of globalization while preserving American popular sovereignty, Yoo and Ku propose three “doctrinal devices”: 1) a presumption that treaties are non-self-executing, 2) presidential discretion in interpreting customary international law, and 3) a reasonable degree of state autonomy in areas of law reserved to the states by the Tenth Amendment. These doctrines would ensure that the political (i.e., elected and democratic) branches of government and not simply federal judges incorporate or not incorporate (as they see fit) international law into domestic American law.

If most treaties were not self-executing, they would require congressional legislation and presidential signature (in addition to the approval of two-thirds of the Senate) in order to become part of American law. Thus, the House of Representatives, the most “democratic” branch of the federal government, would be involved in incorporating treaty law into American domestic law. This additional democratic step would, as Yoo and Ku point out, strengthen the legitimacy of those international laws that we decide should be part of American law.

Customary international law or non-treaty global law has traditionally been recognized through the longstanding practice of nation-states for example, nations should not kill other nations’ ambassadors. In recent years, transnationalists have attempted to greatly expand the reach of customary international law to include global “norms” on criminal justice, social concerns, and warfare that the U.S. has explicitly rejected.

To ensure the participation of the more democratic branches of the federal government, Yoo and Ku propose that the policy interpretation of customary international law be primarily in the hands of the executive, which has the constitutional authority (and expertise) in foreign policy. Meanwhile, the incorporation of customary law into American domestic law should follow the normal constitutional process as legislation approved by both houses of Congress and signed by the president.

Yoo and Ku point out that the Tenth Amendment does not disappear when the U.S. signs a treaty or adopts new customary international law. They cite the Supreme Court’s Medellin decision (2008). In this case, the court gave Texas the green light to execute a convicted murderer who was a Mexican national, despite complaints by the International Court of Justice (backed by the American Bar Association) that the U.S. had violated its commitments under the Vienna Convention on Consular Relations by failing to notify the Mexican consulate. The Court declared the Vienna Convention non-self-executing and, in the absence of federal legislation, state law prevailed. The Court also rejected an appeal by the Bush administration to prevent Texas from carrying out the sentence. Taming Globalization notes that, in ratifying international human-rights treaties, Congress almost always includes “federalist” reservations that insist upon a measure of state autonomy in those areas constitutionally reserved for the states.

One of the great strengths of this book is that the authors dig into the weeds of prominent Supreme Court cases to deftly rebut transnationalist claims. For example, in the famous (at least among international lawyers) Paquete Habana case of 1900, the court declared that “international law is part of our law” a phrase repeated ad nauseam by transnational progressives. But the authors make it clear that even Paquete Habana affirmed that the ultimate interpretation of international law resided primarily with Congress and the president, not the federal courts.

Senator Jon Kyl (R., Ariz.) highly recommended this book in a recent speech, and I think it will prove invaluable for those directly involved in conflicts over American sovereignty: members of Congress, their staffs, State and Defense Department officials, and big-think gurus on the presidential national-security teams.

The authors’ views represent minority opinion in the close-knit international-law community. If the book’s arguments are heard only in law schools, the transnationalists win. Instead, these arguments should be the subject of broad public debate digested, internalized, and, most of all, operationalized, by elected officials and future political appointees. The sovereignty issue is ultimately not legal and technical, but political and democratic. International law is too important to be left to international lawyers.

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