Varieties of American Exceptionalism
One issue for international law is the degree of American exceptionalism. Is the United States an exceptional nation in way that suggests international law should not apply to it in the same way as to other nations? Or perhaps its exceptionalism suggests that it should remain strictly dualist and not apply international law without the endorsement of the political branches. Its exceptionalism also bears on how far foreign law is relevant to the interpretation of our Constitution.
1. The Shining City on the Hill. American culture since the colonial times has made American exceptional. It is a freedom loving nation dedicated to abstract principles and reforming its deficiencies in keeping with those principles. It is an extremely religious nation but without a state religion. Its self-definition is largely separate from ethnicity—still the foundation of most nations in practice. My colleague Steve Calabresi has made the case that these factors together sustain America’s cultural exceptionalism here. One response to this argument is that perhaps every nation can tell some cultural story in which it is exceptional. A reply to this critique is that nations can tell such stories, but it is only America’s story that resonates to attract millions of immigrants from around the globe.
2. The Constitution. American’s Constitution, called by Gladstone “the most wonderful work ever struck off by the brain and purpose of man” and, in particular, its constitution making process make it an exceptional nation. Its supermajoritarian structure for creation and correction of its fundamental law has created a beneficent consensus that is responsible for sustaining a structure of prosperity and freedom that by the end of the twentieth century was the envy of the rest of the word, as proven by immigration and cultural emulation. Michael Rappaport and I begin this line of analysis here. One response may be to claim that other nations have equally good constitution making processes, and I would be interested in seeing such evidence. Even if they do, our Constitution has had more time to work its beneficial effects.
3.The United States as a Democratic Hegemon. It is precisely because the United States is the hyperpower, in the words of one former French Foreign Minister, that it is exceptional. Because of its dominant position in the world economy, the United States has strong incentives to provide both public and private goods for foreign citizens and it thus is likely to generate legal norms that facilitate such goods. Because it is a democratic hegemon made up of immigrants, it is likely to make better decisions with a greater concern for the welfare of foreigners than hegemons of the past. Ilya Somin and I have made this argument here.
In my view, all of these arguments are reinforcing, and the United States is the most exceptional nation the world has ever known.