International law 'vs.' the American Constitution

National Interest, The, Spring, 1999 by Jeremy Rabkin

When major programs of President Roosevelt's New Deal were blocked by the Supreme Court during the 1930s, Roosevelt insisted that the Court must learn to apply a more "modern" view of the Constitution. Soon enough, a reshaped Court did adopt a much more permissive approach and scholars who liked the result spoke of a "living Constitution." We heard more about "evolving standards" and a "living Constitution" from defenders of judicial activism in the 1960s and 1970s. It seemed to offer the prestige of a higher law without the inconvenience of a fixed law. But sometimes we really want a constitution to have fixed and reliable limits. So, for example, many of those who once praised the "living Constitution" have, in recent months, invoked with great solemnity the "law" of impeachment, which, they say, was "fixed" by the Framers of the Constitution in the eighteenth century.

If nothing else, America's months of debate about impeachment remind us that many Americans care deeply about "the rule of law" - and disagree among themselves on what it means. Even those most devoted to defending President Clinton have appealed to arcane legal arguments about the proper application of the Constitution's provisions on impeachment.

But our own law may not be the only law that determines what happens in this country. At the very moment when Americans were so preoccupied with debates about the meaning of perjury or the requirements for impeachment, a series of events around the world offered a foretaste of what may become the next subject of heated legal debate for the United States: the proper reach of international law.

In Britain, the House of Lords decided last December that Augusto Pinochet could be held for extradition to Spain, where a magistrate sought to try the former Chilean dictator for tortures and murders committed by the Chilean government during Pinochet's period as chief of state. Meanwhile, halfway around the world, the government of Australia struggled to defend itself before a UN authority, which condemned the Australian government for allowing a uranium mine to be developed in the vicinity of an Australian national park. And here in the United States, the U.S. Supreme Court, after repeated displays of its own impatience with judicial second-guessing of capital sentences, suddenly ordered a halt to an execution in Texas and agreed to hear an appeal claiming that capital punishment in this case would violate international standards.

All these cases reflect the deepening insinuation of international law into the internal affairs of sovereign states. More than that, they raise sharp questions about the status of this emerging body of law. No one of these episodes marks a historic turning point in itself, but they are all straws in the wind. Lots of things are now rustling in that wind and it is gaining in force. We used to think that the Constitution would serve as a windbreak, but that is no longer so clear. To gauge the extent of the challenge it is necessary to look briefly first at the theoretical assumptions on which our Constitution was grounded, and in light of which it used to be interpreted on matters of international law.

The Traditional American View and its Modern Rival

Resistance to international impositions has a long history in American political and constitutional thinking. Indeed, the United States was founded on a particular understanding of the limited authority of an external law applied to American society. For the American Revolution was a rebellion against the imposition of transnational law, the precise issue being whether the British Parliament possessed the rightful authority to make laws for the internal affairs of the colonies. The colonists insisted that, as they had never been represented in the British Parliament, they could not accept such authority. The British disagreed, and so brought on a revolutionary conflict.

Thus, when the Declaration of Independence asserts the "self-evident" truth that all men are "endowed by their Creator with certain unalienable rights", it proceeds almost at once to the conclusion that governments "derive their just powers from the consent of the governed." The specific grievances against British rule, enumerated in the body of the Declaration, make it plain that "just powers" are those constrained by law, and law derives from the enactments of elected legislatures. In short, no legislature, no real law.

The argument of the American Founders was not a sentimental plea for "participation." The Declaration speaks of consent to the "just powers" of government, not to its every particular action. The point of emphasizing constraints of law and legislative consent is that government remains, at some level, unavoidably about coercion: one submits to lawful government in the understanding that everyone else will be bound by the same law.

Americans were ready to recognize that law requires force to make it effective. Only five years after the end of the Revolutionary War, they adopted a new Constitution precisely to assure more reliable force to American government. The argument for the new Constitution as opposed to the Articles of Confederation was that reliable common policies required a common government, with its own army, its own sources of revenue and its own powers to make and enforce laws. But the underlying point was the same as in the Revolution: such powers are acceptable only if placed under the ultimate control of a common legislature.