Globalization and U.S. Sovereignty: The Contours of an Academic and Policy Debate

by Julian Ku

This past Monday, my Taming Globalization co-author John Yoo and I hosted a number of scholars at an American Enterprise Institute conference to discuss the impact of globalization on U.S. sovereignty.  We were fortunate to have the participation of smart and interesting scholars like Tom Lee of Fordham Law, Tai-heng Cheng of New York Law School and Quinn Emanuel, our own Peter Spiro, Michael Glennon of Tufts, Jeremy Rabkin of George Mason, and John Fonte of the Hudson Institute.  We of course did not get to everything, but I think we did sketch out the contours of the very real academic and policy debate over the proper US attitude and relationship toward international law and institutions.   This post will offer a brief summary of our discussion so you can decide whether you want to click through to the video and watch parts of it yourself.  The conference was also followed by a very interesting set of remarks from U.S. Senator John Kyl of Arizona, whose discussion I’ll address in a separate post.

The conference considered two large questions.  The first was whether globalization, as manifested through mechanisms of transnational global governance, is a meaningful threat to U.S. sovereignty.  My own take, reflected in Taming Globalization, is that globalization and global governance is neither positive or negative as a policy matter. Rather, the challenge is to determine which types of international cooperation are beneficial, and which are not, and to then interpret the US Constitution strictly to guard against impermissible limitations on US sovereignty.  This approach draws support from US participation in international investment treaties, as Tai-heng Cheng emphasized. Folks like Hudson’s John Fonte emphasized the dangers of “creeping” transnational governance.  Fonte found partial agreement with Peter Spiro, who agrees that the rise of transnational global governance is a real phenomenon. The difference, however, is that Spiro sees this process as largely positive as well as inevitable, and he noted that it will ultimately draw support from all parts of the US political spectrum.

The second issue was how and whether the US Constitution should be a limitation on international law and institutions.  John Yoo emphasized how Taming Globalization sees the Constitution as a crucial mechanism for protecting US sovereignty, but that it also operates largely as a procedural rather than a substantive limitation.  In other words, the US Constitution’s procedures for lawmaking are the primary safeguards for US sovereignty, and the Constitution doesn’t require the US to have a internationalist or a sovereigntist vision.  Jeremy Rabkin took sharp exception to our constitutional approach, finding it insufficiently protective of US national identity and sovereignty.  Michael Glennon  agreed that the Constitution is an important limitation, and argued strongly against allowing treaties like the UN Charter to be read to circumvent the Declare War Clause requirement.  Thomas Lee suggested that the Constitution, at least in its original understanding, was substantially more internationalist than many modern scholars (including John and myself) argue.

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