International Law Comes Knocking

Speaking of ontological debates, cracks may be showing in the façade (or is it a bulwark?) of American constitutional exceptionalism, i.e., the notion that US constitutional interpretation should remain unaffected by transnational legal trends and developments. This recent essay (subscription req’d) by Peter Spiro addresses the issue by applying international relations theory to explain how the disaggregated strands of transnational legal developments that have already influenced many areas of US law — intellectual property, antitrust, tax, procedure — are also at work in the area of constitutional jurisprudence. Spiro melds rationalist accounts with constructivist theory to conclude that integration of international norms by domestic actors will accelerate because it is in the self-interest of domestic groups. Here’s a snippet from the introduction:

[D]iscrete elements of the United States, including private actors and disaggregated governmental components beyond the traditional foreign policy apparatus, may be developing an institutional interest in the acceptance of international regimes. This essay thus suggests a future in which international law is absorbed into U.S. law not because it is good, although it may well be that, too, but because rational institutional action will pull in that direction.