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.
