But, of course, the “transnational legal process” articulated by Harold Koh and the politics of transnationalism generally are not democratic. They represent a new form of governance that I call “post-democratic.” To “make, interpret, [and] enforce” international law, “which can in turn be internalized into the domestic law of even resistant nation-states” (as Koh describes it), is to exercise governance. But do these transnational governors have the consent of the governed?
The transnational legal process fails the “government by the consent of the governed” test in two ways. First, the democratic branches of government, the elected representatives of the people, have no direct input either in writing the global laws in the first place, or even in consenting to their domestic internalization, as, for example, happens when the Senate ratifies a treaty or the Congress passes enabling legislation for a non-self-executing treaty.
Second, there is no democratic mechanism to repeal or change these international rules that are incorporated into U.S. law by this process. What if the American people decide that they object to these global norms and transnational laws that were imposed upon them without their consent (on, for example, the death penalty, internal security, immigration, family law, etc.)? What if the American people at first approved, but later changed their minds on, some of these rules: How can these global norms, now part of international law and U.S. constitutional law, be repealed?
Legislation to repeal the global norms could be deemed “unconstitutional.” In short, there are no democratic answers to these questions consistent with the transnational legal process, because it is not a democratic process.
At the end of the day, the argument over the transnational legal process is one part of a larger argument that will come to dominate the 21st century: Who governs?
Will Americans continue to decide for themselves public policies related to national security, human rights, immigration, free speech, terrorism, the environment, trade, commercial regulation, abortion, gay rights, and family issues — or will questions be decided by “transnational issue networks” working with “transnational norm entrepreneurs,” “governmental norm sponsors,” and “interpretive communities,” with the complicity of American judges?
– John Fonte is a senior fellow at the Hudson Institute. His book Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? will be published by Encounter Books in 2010.