INTERNATIONAL LAW AND THE NEXT PRESIDENT

• First, how do current Supreme Court justices view this topic of international law?  There are two competing views on the Court.  One view holds that law, in the age of modern liberal democracy, derives its legitimacy from being enacted by elected representatives of the people.  As Noah Feldman observes, “From this standpoint, the Constitution is seen as facing inward, toward the Americans who made it, toward their rights and their security.  For the most part, that is, the rights the Constitution provides are for citizens and provided only within the borders of the country.”  Therefore, any interpretation of the Constitution that restricts national security or sovereignty is potentially dangerous.  A competing view defines rule of law as a global phenomenon.  It stresses that a fuller, more complete conception of law demands that American law be pictured alongside international law and other (legitimate) national consultations.  As Feldman argues, “The US Constitution, on this cosmopolitan view, faces outward.  It is a paradigm of the rule of law:  rights similar to those it confers on Americans should protect all people everywhere, so that no one falls outside the reach of some legitimate legal order.  What is most important about our Constitution, liberals stress, is not that it provides rights for us but that its vision of freedom ought to apply universally.”  Those who hold to the first view are generally conservatives and fear the international interpretation of law.  One of the greatest conservative concerns is that treaties and international agreements which become a part of law are often interpreted and applied by nondemocratic institutions like tribunals of the World Trade Organization or the United Nations’ International Court of Justice.  To agree to such an arrangement confers future lawmaking authority on some unelected and thus undemocratic bodies.  The US, these critics argue, must always have the right to reject any undesirable verdict of a body like the International Court of Justice and adopt a policy more in line with US interests.  Members of such international bodies often pursue their own political agenda using these international bodies.  There is no better example of this kind of danger than how international bodies treat the nation of Israel.  Almost all UN organizations are blatantly anti-Israel.  Such international law and international policies are therefore wrong and cannot be binding.  To submit to them in the case of Israel would be self-defeating and abjectly dangerous to the very existence of the state of Israel itself.  Further, this more conservative view of law maintains that the Constitution does protect rights, but these are the rights of citizens.  These are not necessarily universal human rights or for foreigners who have never even set foot in the US.  The US Constitution was written to itemize and detail citizens’ rights and how the US government will protect and secure those rights.  For nations that are autocratic or totalitarian, such rights make no sense.  But consider this anomaly:  According to the current President Bush, the US Constitution should serve as an inspiration for the world.  He says that he took the US to war against Iraq to create a democratic society in this part of the world.  It is amazing and rather inconsistent for those who support the more international view of law to so totally reject the President’s efforts.  One would think that spreading constitutional democracy would be their foremost passion.  But as in so many things with the human condition, consistency is not always a virtue.

• Second, how will this matter of international law play as an issue in this presidential election?  To my knowledge, this has not really been a fundamental issue so far.  But we can make this legitimate inference:  If Obama wins the presidency, he will appoint justices that are far more sympathetic to applying international law to America and he will advocate that the US abide by and be involved with international bodies like the International Court of Justice or the World Trade Organization.  If John McCain is elected, there will be more conservative judges nominated to the Court that will take a more critical look at international law and our role in international organizations.  As I stated earlier, this is one of the most crucial dimensions of this election.  Americans should factor this into their decision-making when they cast their ballot.

See Noah Feldman, “When Judges Make Foreign Policy,” The New York Times Magazine (28 September 2008), pp. 50-70.

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