November’s elections will represent a decisive fork in the road for our nation on any number of issues, but none may prove as important as the choice between preserving our constitutional system and embracing transnational progressivism.
We can see the stakes already in the current fight over the Comprehensive Test Ban Treaty (CTBT), which prohibits all testing of nuclear weapons. The Constitution requires a two-thirds Senate vote to approve treaties, but the Senate rejected the CTBT 51–48 in 1999. Undeterred by constitutional requirements, Obama will ask the United Nations in late September to accomplish a de facto ratification of the CTBT.
The scheme works like this: The Obama administration (according to a State Department letter) will submit a Security Council resolution according to which any testing of nuclear weapons by any treaty signatory (including the U.S.) would “defeat the object and purpose of the CTBT.” If the resolution passes, international law prohibits the United States from doing anything to defeat “the object and purpose” of a treaty that it has signed but not ratified. American nuclear testing would obviously violate the rule. Presto! The U.S. will adhere to the CTBT.
Senate Foreign Relations Committee chairman Bob Corker (R., Tenn.) sent a blistering letter to Obama denouncing the plan: “The U.S. Constitution clearly provides the Senate — not the United Nations — the right to the provision of advice and consent for the ratification of any treaty.” The Senate rejected the CTBT to protect our right to modernize obsolete weapons and thus reassure allies under the American nuclear umbrella. Recently, leading opponents of the CTBT, including Corker and former senator Jon Kyl, have argued that, regardless of its substantive views on nuclear testing, the administration cannot ignore the Constitution to achieve its policy goals.
The administration’s CTBT maneuver is more than just Obama’s latest attempt to skirt the Constitution. For years, elites in American legal (e.g., American Bar Association), philanthropic (Ford, Rockefeller foundations), academic (NYU Center for Global Affairs), corporate (Davos conferences), NGO (Human Rights Watch), and foreign-policy (Council on Foreign Relations) circles have promoted the concept that “global problems require global solutions” and, therefore, the need for ever expanding “global governance.”
Sixteen years ago in a law-journal essay, future U.N. ambassador John Bolton posed the question “Should we take global governance seriously?” Bolton wrote that there were “vast disparities” between what he described as “globalists” and “Americanists.” The globalists favor the transfer of some decision-making powers from the nation-state to transnational authorities when, in their view, “global solutions” are required. Americanists believe that political decision-making should remain within the U.S. constitutional system.
“As a convinced Americanist,” Bolton laments that the globalists “have been advancing while the Americanists have slept.” He argues that the challenge of global governance must be taken seriously as it advances in “substantive field after field — human rights, labor, health, the environment, political and military affairs, and international organizations.” Bolton ends by declaring that the “debate over global governance” is “the decisive issue facing the United States internationally.”
What is the transnational-progressive agenda? A Council on Foreign Relations (CFR) working paper on “democratic internationalism,” published by G. John Ikenberry and Daniel Deudney shortly after Obama’s reelection, outlines the goals. The authors call for “social and economic equity associated with social democracy” based on “progressive pragmatism” as articulated by John Dewey. They also argue that building progressivism in one country will not work. Specifically, in order to “reverse” the policies of “Reagan-Thatcher fundamentalist capitalism,” the “forging [of] transnational democratic progressive alliances” will be necessary.
At the turn of the 20th century, progressives led by Woodrow Wilson created the modern administrative state. It expanded during the New Deal and upended the constitutional separation of powers and federalism. The administrative state effectively made laws and issued judicial rulings through overarching regulations and thereby weakened the principle of government by consent of the governed. These early progressives, however, remained nationalists. They envisioned an administrative state run by Americans. In contrast, 21st-century progressives are transnational. The CFR paper advocates a global, as opposed to a national, regulatory regime: “Solving the cascade of emerging global problems, perhaps most notably climate change, will depend on the globalization of regulatory state capacities.”
The regulatory regime of a “global” administrative state would most likely be implemented through treaty monitors (comprising various nation-state and U.N. bureaucrats) in areas such as human rights; women’s and children’s rights; refugee rights; the environment; climate; sustainable development; arms control; small-arms (gun) control; hate speech, xenophobia, and racism; and the laws of war. Central to the transnational-progressive idea is the concept of the “global rule of law,” under which nation-states cede judicial authority to supranational courts.
One such court has been operating for more than a decade: the International Criminal Court (ICC). The Rome Statute, a 1998 treaty, created it as a permanent global court to deal with war crimes, crimes against humanity, genocide, and crimes of aggression. The ICC claims jurisdiction over nations, such as the United States, that have not ratified the treaty if their officials or soldiers commit war crimes on the territory of a treaty member. The ICC is currently investigating American forces in Afghanistan on the grounds that Afghanistan is a member of the ICC. The ICC contends that it adheres to the principle of “complementarity,” meaning that a state would have the right to try its citizens first. But if a state is “unwilling or unable” to try its own citizens, the ICC claims jurisdiction. If an American court were to acquit an American soldier of a “war crime,” the ICC could claim that the U.S. courts were “unwilling” to convict and begin its own prosecution.
Authority over the meaning of complementarity — and even what constitutes a war crime — rests with the ICC, not with the jurisprudence of democratic states. The ICC prosecutor is accountable to no democratic authority, but only to the judges of the ICC itself. It is anathema to American constitutional democracy and the democratic principle of government by consent of the governed. Nevertheless, leading figures in the Democratic party and in elite liberal circles favor American submission to the ICC because they have ceased to be national progressives and have become transnational progressives.
As secretary of state, Hillary Clinton told a Kenyan audience that it is “a great regret” that the United States has not submitted to the ICC. Secretary Clinton’s chief intellectual strategist at the State Department, the head of the office of policy and planning, was Princeton professor Anne-Marie Slaughter. She has outlined in detail how the global administrative state would work through the “coercive power of vertical [government] networks”:
Vertical government networks pierce the shell of state sovereignty by making individual government institutions — courts, regulatory agencies, or even legislators — responsible for implementation of rules created by a supranational institution. . . . Vertical government networks make it possible for a supranational court, regulatory entity, or parliament to create a relationship with its national counterparts to make those rules directly enforceable.
Another leading transnational thinker and key Clinton lieutenant is Yale law professor Harold Koh, who was the State Department’s chief legal officer. Koh advocates a “transnational legal process” that engages “nation-states, corporations, international organizations, and non-governmental organizations” in “a variety of forums, to make, interpret, enforce, and ultimately internalize rules of international law.” Lawyers “should trigger transnational interactions, which generate legal interpretations, which can in turn be internalized into the domestic law of even resistant nation-states.”
Clinton, Slaughter, and Koh welcome a post-American global administrative state and transnational legal system that are light years away from such quaint notions as the supremacy of the Constitution, representative democracy, and government by consent of the governed.
Today’s advocates of global governance confront the same obstacle that faced their progressive progenitors: the American Constitution. Wilson believed that the separation of powers had become obsolete. FDR attacked the Supreme Court for its “horse-and-buggy” readings of the Constitution — until the justices bent before his Court-packing threat. Both presidents advanced their reforms by evading the Constitution’s protections for the separation of powers and federalism. They side-stepped the former by persuading Congress to delegate broad legislative power to unaccountable federal agencies. They made an end-run around the latter by claiming that any activity, no matter how small, affected interstate commerce, which fell under Congress’s Article I, Section 8 powers.
The Obama administration and its supporters seek similar shortcuts around the Constitution, but with a critical difference. The nationalization of the American economy prompted an enormous redistribution of power from the states to the federal government and from Congress to the executive. Though a departure from the original constitutional design, this rewiring of government still kept power within bodies accountable to the American people. States still regulated crime, contracts, and property. Federal agencies still answered to the president. Congress could still recall its grants of authority and conduct oversight of the agencies. The courts could still exercise judicial review to protect individual rights.
Global governance demands transfers of authority that are categorically different in their contempt for democracy. Nations must transfer lawmaking power to transnational institutions, which will provide “global solutions” free from national interests. Their authority must run beyond any nation’s political control to preserve their claim to universality. The aforementioned methods of controlling the administrative state — oversight hearings, judicial review, budgetary control, legislative amendment — are incompatible with the institutions of global governance.
The Paris accords on climate change, for example, regulate the activity of all nations by limiting not just industrial pollution but also agriculture and household energy use. The United States is only one voice — albeit a powerful one — in the setting of climate-change targets, acting on a par with the European Union and China. The Chemical Weapons Convention, to take another example, creates an independent secretariat with the power to ban any chemical worldwide.
The principles of American constitutional government stand firmly in the way of global governance. The Constitution places ultimate sovereign authority not in government but in the American people. This is the first principle of our constitutional order. The Declaration of Independence states that governments “derive their just Powers from the Consent of the Governed” and that when a government abuses its authority “it is the Right of the People to alter or to abolish it, and to institute new Government.” As James Madison argued, the federal and state governments “are in fact but agents and trustees of the people.” He wrote in Federalist No. 46 that “the ultimate authority, wherever the derivative may be found, resides in the people alone.”
The Constitution contains no provision to transfer sovereignty outside the United States. It allows the president to make treaties with the “advice and consent” of the Senate. It recognizes the president’s authority as chief executive and commander-in-chief, which gives him the power to conduct foreign policy. It gives the executive the authority to conduct normal diplomacy, but not to permanently transfer public authority beyond our constitutional system. That idea would have offended the Framers, who had revolted against Great Britain precisely because Parliament had prevented the Colonies from having any democratic voice. The president can conduct short-term diplomacy but may not make major commitments without the approval of the legislature. Just as physics has a law of the conservation of energy, the Constitution creates a law of the conservation of sovereignty.
The Supreme Court has reaffirmed that the Constitution, not global institutions, has the final say. In a series of cases, the International Court of Justice ordered the United States to halt the execution of aliens convicted of murder because they had not received their full rights to consular assistance. The U.S. Supreme Court refused to comply. It declared: “If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one Supreme Court’ established by the Constitution.”
Global governance also threatens the Constitution’s enumeration of powers to Congress. A fundamental element of the separation of powers is Congress’s sole federal authority to legislate on domestic affairs. If a treaty requires the United States to change its tariff laws, Congress must still pass legislation to bring the nation into compliance. This core principle was extensively discussed during the State of Virginia’s ratifying convention in 1788 and the congressional debate over the Jay Treaty of 1796. In the latter affair, the House declared that the Constitution “left with the President and Senate the power of making Treaties, but required at the same time the Legislative sanction and cooperation, in those cases where the Constitution had given express and specific powers to the Legislature.” Otherwise, then-congressman Madison argued, the president could use a treaty to create new criminal laws or impose new taxes without the agreement of the House as required by the Constitution. While President Washington could reach an agreement with Great Britain, only Congress could change the laws and provide the revenues necessary to comply with the treaty.
The Obama administration’s effort to jury-rig an international obligation out of a Security Council Resolution directly violates the separation of the executive from the legislative power. He seeks not only to cut the Senate out of its constitutional role; he is also trying to create a legal obligation that would prevent the testing of nuclear weapons, even though Congress has ordered the modernization of the U.S. arsenal. Similarly, transnational progressives armed with the Paris accords will seek to impose new environmental regulations to reduce American energy use, even though Congress has never passed laws to do so. The Obama approach, no doubt to be continued under a Clinton administration, ejects the Senate and seeks to create international obligations unilaterally.
Using unilateral international promises to leverage new domestic laws violates another core constitutional principle: federalism. The Framers limited the powers of the national government primarily to the protection of national security and the conduct of foreign policy, the regulation of interstate commerce, and taxing and spending. Global governance allows the universal regulation of every type of human activity. Climate-change agreements, for example, call for the reduction of energy use in every aspect of society. Such schemes violate the Constitution’s limitation of federal regulatory power.
The intractable opposition of American constitutionalism and global governance will play out for decades to come. Powerful forces in elite universities, large foundations, major corporations, the administrative bureaucracy, and political parties will continue to repeat the mantra that “global problems require global solutions” and continue to promote global governance at the expense of the constitutional framework bequeathed to us by the Founders of our democratic republic. Hillary Clinton’s election would strengthen the transnational-progressive agenda. But, well beyond this year’s presidential election, our fellow citizens must resist the machinations of the transnational progressives and their post-national administrative state if government by the consent of the governed is to endure.
– Mr. Fonte, a senior fellow at the Hudson Institute, is the author of Sovereignty or Submission. Mr. Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute.