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Buy the Book
Whose Rule of Law?
The global legal standard has far more to do with imposing others’ cultural norms on Americans than with fostering Anglo-Saxon precedents abroad.
Taming Globalization: International Law, the U.S. Constitution,
and the New World Order
By John Yoo and Julian Ku
(Oxford University Press, 274 Pages, $35)
Two memories stand out about my brief foray at Duke University Law School in the early 1960s. One occurred when I was made my class’s representative to plan the dedication of the new law school building on campus. It was an elaborate ceremony to be led by no less than Chief Justice Earl Warren and joined by all the political elite among the school’s alumni—except for our highest-achieving graduate, former Vice President Richard Nixon.
When I expressed curiosity about the omission, I was briskly shushed by the dean and told in no uncertain terms that Nixon would never be allowed back on the Duke campus for reasons that were never fully explained. And so it would be. Even the offer of his presidential library was not enough to expunge whatever offense Nixon had committed at Duke.
The other memory is more pleasant. Finding myself unable to focus on torts and property in fee simple absolute, I took to wandering through the school until I came on a suite of offices for something called the World Rule of Law Center.
There I met Arthur Larson, the center’s founding director. Larson had been known as “the brains of the Eisenhower administration” which he had served as undersecretary of labor, head of the U.S. Information Agency and, lastly, as Ike’s chief speechwriter. He had resigned in 1959 to return to teaching and to create the center to foster this vague concept called the World Rule of Law.
Taking time to give a patient tutorial to an obvious ignoramus, Larson explained to me that the concept was the latest hot idea of Cold War strategy. Fostering a world standard of justice based on the case-precedent laws of England and the United States would be crucial to establishing true democracies among less developed nations and would prove a bulwark against the arbitrary rule of despots— Communists, Fascists, monarchs. He pointed to a declaration signed in Delhi two years earlier when jurists from 53 nations endorsed the United Nations Declaration of Human Rights and vowed to work to clarify a common rule of law. It was the coming thing.
Except that it wasn’t. The global legal standard that constitutional scholars John Yoo and Julian Ku examine in this thoroughly researched yet accessibly written study has far more to do with imposing others’ cultural norms on Americans than with fostering Anglo-Saxon precedents abroad.
The globalization of the world marketplace is the driving force behind this external challenge to the unique American relationship set by the Constitution—which reserves all powers to the people and governments of the 50 states and delegates specific tasks to the national government— through the separate powers accorded the Congress, the president, and the Supreme Court.
What alarms the authors is not so much the external challenges to Washington’s power, but that international pacts, courts of all nations, and so-called non-governmental organizations (private agenda lobbies) are using that global arena to challenge established procedures of the states themselves—whether it is a challenge to a Texas death penalty case, a Seattle child-custody battle, or the environmental impact of an automobile made in South Carolina.
The authors know whereof they write. Yoo, now a law professor at UC–Berkeley, was a former U.S. Supreme Court clerk and served in the George W. Bush administration’s Office of Legal Counsel. Ku, who teaches law at Hofstra University, widely publishes on international law in the Yale Law Review and other journals.
They are less concerned about the impact of international organizations such as the United Nations, the World Trade Organization, or the International Court of Justice, which have legal force because participating governments have said they do.
Instead the authors focus on NGOs like Amnesty International, “groups without any formal legal authority and not established pursuant to any treaty”: NGOs in particular have shown an ability to operate within the domestic U.S. system, influencing the outcomes of governmental decisions in ways that lie outside the competence of international institutions. For example,
NGOs have used creative and effective litigation strategies to develop and enforce global governance regimes via the U.S. court system. Such litigation can result, and has resulted, in the adoption of an interpretation of international law over the opposition of the government’s chief foreign policy organ: the executive branch.
The debate this book will surely generate centers on the authors’ three proposed remedies to this new challenge to popular sovereignty. Their objective is to preserve the benefits to America’s role as a world power in the international sphere while strengthening our constitutional system of domestic government.
One remedy is to prevent state courts from enforcing foreign obligations—treaties, pacts, agreements— unless and until they are formally ratified, usually by Congress. Another is to strengthen the power of the president to both interpret international law agreements and to terminate U.S. participation in them. And fi nally, since states are the fi nal arbiters of so many of our laws—civil, criminal, domestic— they should have enhanced power to resist the imposition of foreign rules, official or NGO-imposed, that conflict with community customs.
Each of these remedies presumes a fundamental overhaul of the U.S. Constitution’s powers and its relations with both our state and national governments. Given today’s poisonous political atmosphere, that is unlikely any time soon.
Yet this carefully reasoned study by two of our more thoughtful constitutionalists is the beginning of a much needed debate. It is one that I think Arthur Larson would have been happy to join.
About the Author
James Srodes, an author and broadcaster, is a former Washington bureau chief for Forbes and Financial Worldmagazines. His latest book, On Dupont Circle: Franklin and Eleanor Roosevelt and the Progressives Who Shaped Our World, is being published next week. His email address is srodesnews@msn.com.
Letter to the Editor View all comments (15) | Leave a comment
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Mike G| 10.31.12 @ 7:56AM
"Each of these remedies presumes a fundamental overhaul of the U.S. Constitution’s powers and its relations with both our state and national governments."
Any conservative would be totally against this. There is nothing wrong with our Constitution. The problems we face are with our Executive, Legislative, and Judicial branches that continually ignore their constitutional limitations.
c. j. acworth| 10.31.12 @ 8:07AM
My thought exactly. When I came across the phrase "...prove a bulwark against the arbitrary rule of despots" I thought "We could use a little of that here."
TLP| 10.31.12 @ 10:49AM
The only problem with the Constitution, is that We The People have no means of Enforcing its Use.
If the only Enforcement Measure is The Executive Branch? (where all of the Uncostitutional Sh*t is coming from) Then there really is No Enforcement Mechanism, is there?
C. Vernon Crisler | 10.31.12 @ 10:51AM
My understanding of the Constitution is that the federal government is empowered to deal with all things foreign or international and the States deal only with domestic matters.
The idea that the States should involve themselves in foreign matters, or that the Federal government should involve itself with domestic matters shows how far we are from the thought of Washington, Madison, and Jefferson. I agree, there is nothing wrong with the Constitution; the problem is that Progressivism has infected all branches of our government and no longer believes in Constitutional limitations.
Byron| 10.31.12 @ 9:17AM
Why, in a country where the culture is micro-managed moment to moment 24/7, do we protect other cultures no matter how opressive and militant they are as if they are part of a human zoo? If we have to fight an die in a country we must first bring our culture there and try to modify peoples thinking in some way other than just killing them, otherwise killing them will bring no changes and probably make things worse. I mean Bibles, booze, arming and training women, classical education, and teaching and preaching live and let live. Why are people of other cultures treated like the snail darter? If your country or culture is so screwed up that it comes to armed conflict then we can introduce any ideas we care to.
oldeham| 10.31.12 @ 12:22PM
To me this is where we get into Jeffersonian Democracy. Every now and then you need to throw out all the scum that floats to the top and start over. Jefferson had a significant distrust of 'professional' political types - and with good reason. The most common professional political type of his day was the Monarchy. People who through birth and/or education and/or sword rose to leadership.
Such people have a tendency to 'stack the deck' so they stay in power.
While Mr. Srodes makes some good points, calling another Constitutional Convention will only open the door for Islamic/Internationalist law type to insert the death pill that will render the document effectively neutered.
An amendment to impose term limits create their own problems - it might be the best way to keep ALL the scum from floating to the top.
Also, to decentralize power inside the Beltway we need to return the selection of Senators to the States. Bring the power closer to home.
Alej| 10.31.12 @ 5:06PM
"Also, to decentralize power inside the Beltway we need to... "
... imbue 50 governors with enough testosterone to strictly enforce the 10th Amendment.
Bill8472| 10.31.12 @ 1:55PM
Do the proponents of the World Rule of Law understand the necessity of having a common-law tradition of long standing when they seek to impose a case-precedent system of law worldwide?
I mean, without the concept of a binding set of rules for judicial self-restraint (ripeness, mootness, political questions, and so on), a case-based set of principles will just result in judge-made law, with all of the problems we in America already know about.
Bill8472| 10.31.12 @ 1:57PM
I suppose national sovereignty will yield to the rule of the international courts.
I trust there will be some mechanism of judicial accountability to The People somehow miraculously built into the proposed system.
Bob K| 10.31.12 @ 5:20PM
I do not think this "World Rule of Law" or any other kind of World Rule of anything is possible.
This "World Rule of Law" is a fantasy concocted for the US Ruling class by the Academic Industry and pushed by the Media. It is a kind of "Global Warming of the Mind" void of any understanding of how the world works and ignorant of History.
The two most powerful forces in the world since at least the middle of the 19th Century have been Nationalism and Socialism. They, with the force of Democracy, which works within each Nation and Culture, make nonsense of these academic exercises.
For example; Europe has most recently been unable to make a workable United Monetary System which is now falling apart. How can it be expected to cooperate in a United World "Rule of Law?"
Riff Raff| 10.31.12 @ 5:33PM
Ah yes. The practicality of experience. But this has never stopped the idealists of the Left, who have been fantasizing about a utopian universal government for millenia. From the Caesars to Charlemagne to William the Bastard to Stalin to Mao to Hitler, ego-maniacal men have dreamed of being the "top dog" in command of the entire known World, though no actual benefit to the People from this arrangement has even been demonstrated. We the People of the United States have laws to prohibit this sort of thing. But we must be diligent. The totalitarianism of the egotistical is an ever present threat.
Albert Constantine Jr.| 10.31.12 @ 10:00PM
Bob K;
In a question only tangentially related to rule of law, do I correctly recall you posting in the past year or so about being on jury duty in Pa. in a case involving a driver for the Red Cross accused of theft, or was that someone else?
Bob K| 11.1.12 @ 12:11AM
No. That was not me.
Albert Constantine Jr.| 11.1.12 @ 6:03PM
Maybe it was one of the Western PA regulars. Thank you for clearing it up.
Riff Raff| 10.31.12 @ 5:26PM
Richard Nixon's "crime" against Duke University was obvious enough, probably even in the early 1960's. Richard Nixon exposed Alger Hiss as a paid Communist agent who had transmitted classified Department of State documents to the Soviet Union. This revelation and Hiss' conviction for perjury embarrassed the Truman Administration since it stood by Hiss despite the evidence. For exposing this, Nixon would be forever shunned by the Communist faculty of his Law School.