June 22, 2013


The War of Law: How New International Law Undermines Democratic Sovereignty (Douglas J. Feith , John Fonte , Jon Kyl , July/August 2013, Foreign Affairs)

Transnationalists argue that in the interest of promoting "global governance," U.S. officials should bring the Constitution and American law into conformity with "global norms," thus effectively elevating those norms above the Constitution. They want the United States to adopt what they deem progressive rules -- for example, gun control, the banning of the death penalty, and new laws of war. But they want to do so through judicial decisions, a method that allows them to circumvent resistant legislatures and effectively smuggle new restrictions into U.S. law. 
As becomes clear from even a cursory reading of leading American law journals and official communiqu├ęs of the European Union, transnationalism is an influential school of thought in academic and official circles in the United States and throughout the developed world. A key proponent of the movement is Harold Koh, the former dean of Yale Law School who served four years as the State Department's legal adviser in the Obama administration. 

Koh has been a compelling advocate of what he calls "the transnational legal process," whereby "transnational private actors" blend domestic and international legal processes to incorporate or internalize so-called global legal norms into domestic law. "Key agents in promoting this process of internalization include transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, and interpretive communities," he wrote in a 2006 Penn State International Law Review article. "In this story, one of these agents triggers an interaction at the international level, works together with other agents of internalization to force an interpretation of the international legal norm in an interpretive forum, and then continues to work with those agents to persuade a resisting nation-state to internalize that interpretation into domestic law." In the same law journal article, Koh wrote about the way international law can be "downloaded" into U.S. law.

These ideas no doubt appeal to those who support the progressive policies at issue. But they are disrespectful toward the U.S. Constitution and dismissive of the idea that the American people should be able to elect -- and eject -- the officials who make their laws. The transnationalists challenge not merely the technicalities of lawmaking but the very essence of democratic accountability. Transnationalists do not have grandiose plans for one-world government, but they do want to give various rules the force of law without having to win majorities for those rules in democratically elected legislatures. This is not the way lawmaking is supposed to work under the U.S. Constitution.  [...]

In The Federalist Papers, no. 46, James Madison compared the powers of the federal and state governments, noting that the power of both federal and state authorities ultimately derives from the consent of the American people. Thus, he wrote:

Notwithstanding the different modes in which [federal and state governments] are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. . . . The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. . . . The ultimate authority, wherever the derivative may be found, resides in the people alone.
Madison was articulating a basic concept of American constitutional democracy, and it is one that should guide the country's approach to international law and world politics today. By following that path, the United States could obtain the benefits of globalization while preserving its sovereignty and democracy.

...requires consent.
Posted by at June 22, 2013 7:13 AM

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