Saving Sovereignty
From the April 2, 2012, issue of NR

Taming Globalization: International Law, the U.S. Constitution, and the New World Order, by John Yoo and Julian Ku


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 proto– New 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: International Law, the U.S. Constitution, and the New World Order, 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.