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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.

By From the October 2012 issue

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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.

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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.