Diane Wood, World Federalist or Sovereigntist?
Most of us IL types will know that Judge Wood has some strong interests in the area (she has been on the board of editors of the AJIL), but in my case at least it’s a pretty vague awareness. That’s because her focus has been on international commerical subjects (antitrust, in particular) rather than public IL straight up.
So I’ve cast around a little to try to get a fix on where she might stand as an internationalist justice. In “Regulation in the Single Global Market: From Anarchy to World Federalism?”, 23 Ohio Northern Law Review 297 (1996), she answers the question (surprise!) in the negative. (Pretty risky, though, to include the term in a lecture title — some people won’t need to read any further.) For purposes of antitrust regulation, Wood seems to advocate a kind of bottom-up global regulatory networks approach by way of ensuring accountability and legitimacy from the (domestic) ground up.
More interesting is material from a 2004 lecture at NYU, “Our 18th Century Constitution in the 21st Century World,” 80 NYU Law Review 1079 (2005), a piece which is going to get the fine-comb treatment. It’s living constitution stuff. For our purposes, the key argument is that it is only through evolving constitutional understandings that US practice conforms with human rights conventions, presented with a decidedly non-internationalist logic:
Of all these conventions, the one with the most general sweep and the one that shows most dramatically how much we depend on our evolving Constitution is the International Covenant on Civil and Political Rights. The Covenant, which currently has 152 State Parties, expressly recognizes [a broad range of rights].
The Declarations and Understandings of the United States quite clearly reserve the right of the United States to derogate from some of these obligations – for instance, the United States has reserved the authority (though certainly not the obligation as the Court’s 2005 decision in Roper v. Simmons has now made clear as a matter of domestic law) to impose the death penalty on a person below the age of 18 – but just as clearly those Declarations and Understandings reflect the assumption that United States law already protects everything to which an express reservation was not made. Accordingly, the United States disavowed any need to create separate private rights of action under the Convention.
While some have bemoaned the Declarations and Understandings because they appear to cabin the United States’ commitment to the Convention, the implication that U.S. law is already doing the job should be seen in a positive light. Nonetheless, the United States cannot support this assertion without relying on the unwritten constitutional protections we have been reviewing. The Constitution does not explicitly mention equal rights of men and women; a right to travel; a right to be free from arbitrary interference with one’s privacy, family, and home; protection of the family; the right to marry; or cultural rights of minority groups. Yet as presently understood, U.S. law affords protection to most, if not all, of these rights as a matter of constitutional law. . . . If our understanding of our own Constitution were more cramped, we would be forced to admit that there is no secure constitutional foundation in United States law for these international human rights norms. Although one might hope that statutes could be passed that would fill the gap, there is first a question whether Section 5 of the Fourteenth Amendment would suffice as a basis for a nationally enforceable code of human rights. Recall, in this connection, the fate of the Violence Against Women Act in United States v. Morrison and ask whether the understanding of the treaty power expressed in Missouri v. Holland would be enough to support legislation enacting the Covenant’s rights in the eyes of a strict constructionist. In addition, there is always the risk that unpopular minorities might be left behind.
That’s a new trick, seeing RUDs in a positive progressive light! Note that she dodges the issue of whether the treaty power can pick up where the living constitution leaves off, implicitly questioning the continuing viability of Missouri v. Holland. What does this all mean? She’s even more clearly confirmable than one might have thought!