Kevin D. Williamson has said of globalization that “it is irreversible, and the desire to reverse it is inhumane because (it) is making the world better. But there are tradeoffs.” He wrote that in the context of the economics and free trade, but it is just as true in the larger (and overlapping) context of sovereignty.
Our constitutional commercial republic is out of step with the political and legal habits of much of the world. Here is an interesting book review for those of us who think this is a good thing, a critical ingredient of our success, and worth protecting as we further coordinate and integrate the disparate political systems found across the globe:
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.”
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.
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.