Varieties of American Exceptionalism

by John McGinnis

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.

http://opiniojuris.org/2007/09/13/varieties-of-american-exceptionalism/

8 Responses

  1. I don’t see why these arguments would be convincing to anyone who actually wants international law to be binding. Leaving aside whether they’re empirically true, “your honor, the law doesn’t actually apply to me, because I’m a really, really, really good guy” doesn’t usually get very far in most other contexts.

  2. When did jingoism become an acceptable form of argument in international law? Would you actually be able to bring yourself to argue before any international body that the US should be permitted to violate the law because it has the best culture, best constitution, and best hegemonic impulses? Without cracking up or staring at your shoes?

    Incidentally, I did once hear these arguments made to a room full of foreigners; after their sense of shock passed, much merriment ensued.

    But best of luck….

  3. I am really sorry, but was this post suggested as some kind of a joke? I hope so. Otherwise I can hardly believe what I see.

    Is the US really the only country that has got some exceptional culture?

    Is it the only one with constitution?

    And as for it having big power is it not rather even more the reason that it should not violate the law? I think in the history of human race we had times when there was no law only rule of the strongest. Does anyone want to suggest that these were the “wonderful” times on Earth that we should follow?

    Does the line that US “is likely to make better decisions with a greater concern for the welfare of foreigners than hegemons of the past” suggest that the whole world should just accept the US will rule over us? How can anyone relying on the assertion that US is exceptional because it is “freedom loving” and has got a democratic constitution claim that?

    But I still want to believe that it was meant as a joke…

  4. How can the Constitution “remain strictly dualist” when it never has been? Does not Article VI say that treaties are part of the supreme law of the land? When did Congress acquire supremacy and adopt the notion of Parliamentary Supremacy and the U.K.’s dualist system? This claim is rather extraordinary. Even John Yoo has not gone this far in maintaining the non-self-execution of treaties.

    Francisco Forrest Martin

  5. I regret but I find all three of these arguments extremely elitist and ahistorical. They push under the rug way too much of American history and world history and that is just too painful to read. I can imagine the echo chambers where these views get their currency.

    Best,

    Ben

  6. “It is a freedom loving nation”

    Please tell me if I am wrong: This country was built upon slavery and genocide (Natives Americans). Racism continuse till this day. But maybe it will be fair to ask you to explain why this country has supported almost every single brutal dictator the world has seen.

    “but it is only America’s story that resonates to attract millions of immigrants from around the globe.”

    I am sorry to say but America is not th e only country to take millions of immigrants from around the world. So does Europe, and just to mention two, Spain and Italy.

    “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,”

    This I must agree with! But that was only until the begining of the twentyfirst century, when the rest of the world saw how this country treated its own citizens (Katrina). I know it did not make news over here, but do you have any idea how many families decided not to send their children to this country after it saw how poor americans were treated? If that is how they treat their own people, how will they treat foreigners?

    Exeptional? Nahhh…

  7. There are plenty of criticisms one could make of these individual arguments about the cultural &historical peremptoriness offered here, however, I think the fact that the argument jumps from proving de Tocquevillian exceptionalism to foreign policy exceptionalism is pretty revealing.

    There is no necessary connection between the two, and yet the author assumes that if one is convinced by the first, the other will follow. But this makes no sense at all. Indeed, one can readily believe in IL universalism whilst holding all sorts of powerful beliefs about the exceptionalism of America, such as its entrepreneurial spirit, its unique modern religiosity compared to Europe, its historical role in advancing the democratic frontier, and the general free-thinking confidence of its public aspirations.

    The reasons for this is that foreign policy exceptionalism is not just an extension of a proud nationalism, it is a extra layer of normative interpretation which defies the most elemtary requirement of adherence generating norms. It requires a deliberate conceit of the basic incapacity of non-universalisable rules to generate a normalising effect – which is the basic requirement of law – to be uncertainty-reducing, and values-promoting. No system claiming to normative status can be credibly based on exceptionalism in the long run because such a system is self-refuting. It makes one set of rules for one, and another set of rules for another.

  8. While I suppose an argument of American Exceptionalism might be tendered towards the voters of the US, I doubt anyone would even bother with argument towards the rest of the international community.

    If there is any argument towards American Exceptionalism as addressed to the rest of the world, I imagine it pertains to our rather exceptional military and economic clout.

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