Watch on the West
A Newsletter of FPRI’s Center for the Study of America and the West

The Use and Abuse of U.S. Constitutional Law as a Model for Others

Volume 2, Number 3
July 2001

by Stephen B. Presser

This article is adapted from a presentation made to the Foreign Policy Research Institute’s Study Group on America and the West, December 4, 2000, and is a condensed version of an essay that appears in the Summer 2001 issue of Orbis as part of a series of essays drawn from the Study Group. The other essays in this special Orbis collection include “Triumph without Self-Belief,” by Alan Charles Kors; “Global Triumph or Western Twilight?” by James Kurth, and “America, the West, and the World,” by William Anthony Hay. Portions of this essay appeared in Chronicles: A Magazine of American Culture.

Stephen B. Presser is the Raoul Berger Professor of Legal History at Northwestern University School of Law and a professor of business law at the Kellogg Graduate School of Management of Northwestern University.

I want to examine three things — 1) the current state of American law generally, 2) our recent intervention in Kosovo, and 3) some trends we can observe underway in Britain and the European Union— in order to ruminate on the state of jurisprudence generally, and how the same disease appears to be attacking both national and international law.

I teach American legal and Constitutional history to undergraduates and law students, and I start them with the confrontation between Sir Edward Coke and James I over whether the common law controlled the King’s prerogative. The lesson from that episode, if one is going to have any conception of human rights at all, is that the rule of law, the restraint of arbitrary power, is fundamental. But an important part of the struggle between Coke and James I— and later Parliament and James II— was the manner in which the rule of law was to be secured. Both Coke and the Stuarts thought they were implementing the rule of law, dictated by natural law thought to flow from God. While Coke thought he could find this in the decisions of the common law, the Stuarts believed that God delivered these rules directly to them, as His viceroys on Earth. Coke’s struggles and the Glorious Revolution taught Americans that in rejecting the Stuart conception of divine right of kings, England rejected both the continental conceptions of centralized Royal rule and the binding nature of the dictates of Rome. English common law, prodded by Coke, thus embarked on a unique national development.


National Security and International Law

Eighteenth century Americans understood English conceptions of the rule of law, the common law, and natural law from a particularly nationalist perspective. The American Revolution saw Englishmen fighting Englishmen for the rights of Englishmen, and those ideas about rights derived in part from Coke were particularly English in character.

National sovereignty was a part of this conception. Coke, along with those who deposed James II in 1688, and later those who fought in the American Revolution and formed the Federal Constitution, viewed national sovereignty as a fundamental part of human rights and of law. National sovereignty was a concept dictated by the law of nature, and by nature’s God. Jefferson’s declaration of independence, like Locke’s second treatise, talks about the rights of a people to throw off a tyrannical government bent on interfering with unalienable rights, and to establish a government to preserve those rights. “People” here means “nation,” and perhaps this right of national sovereignty is the most fundamental human right of all.

Curiously, much of the modern conception of human rights, seems bottomed on universalist notions in conflict with the idea of a particular people’s national sovereignty. These new ideas of human rights seem connected not with eighteenth century notions of the law of nature and a stable legal order, but rather with the jurisprudence of legal realism, a search for human perfection, and the notion of the malleability of law.

This was nowhere made clearer than when the United States and its NATO allies bombed the Serbian forces of Slobidan Milosevic, the first offensive action for NATO, and the first time that Allied armed forces were unleashed against a sovereign nation with which the United States was not formally at war or without express authorization by the United Nations Security Council. What we were doing in the Balkans is part of the post-Vietnam creation of a new set of doctrines of international law. These doctrines lack clearly defined limits. We may be witnessing the opening moves in the forging of a New Global Order, that fundamentally impairs national sovereignty and allows possessors of superior military force to dictate the basic terms of domestic life to other nations without even the formalities of conquest.

Whatever the “human rights” and “ethnic cleansing” pretexts of NATO and the American president, it seems obvious that the bombing would not have taken place if Milosevic had acceded to the proposed Rambouillet accords, a NATO-approved formulation requiring Serbia to give Kosovars some "autonomy,” even if Serbia would not have immediately ceded sovereignty. The real reason for bombing Milosevic’s forces— the army of a sovereign nation— appears to have been to compel Belgrade to cede autonomy if not territory to a minority ethnic group.

What is there, then, in the United Nations charter or in international law that would authorize our action in the Balkans, and what, if any are the reach and the limits of our new doctrine of Humanitarian Intervention? What kind of jurisprudence animates it?

The UN Charter seeks to secure both the protection of “fundamental human rights” and the “equal rights” of “nations large and small.” The Charter clearly undertakes to protect the territorial integrity and the sovereignty of individual nations, and seems to preclude interference in a nation’s domestic affairs unless the Security Council declares a situation a threat to “international peace and security” and expressly authorizes intervention. While the UN and its agencies expressed official concern about what went on in the Balkans, the Security Council did not authorize intervention in Kosovo by UN or NATO forces. However, a series of international law doctrines wholly outside the UN Charter authorize interference by one state in another’s affairs. These have included military actions to protect one’s own citizens who are within another’s borders, and there have been several armed interventions by individual or groups of nations purportedly to protect the rights of minorities in particular or human rights in general, whether or not the individuals to be protected were citizens of the intervening nations.

A third type of intervention has occurred, usually through UN auspices, in the cases of “failed states,” incapable of protecting human rights. There is even some scholarly and UN support for a fourth type of intervention to prevent human rights violations that have not yet occurred. For these theorists, national sovereignty counts for very little, if anything.

The authoritative “Restatement of Foreign Relations Law” sponsored by the American Law Institute — America’s most prestigious organization of judges, lawyers, and legal academics— sums all this up by saying that:

Whether a state may intervene with military force in the territory of another state without its consent, not to rescue the victims but to prevent or terminate human rights violations, is not agreed or authoritatively determined. Such intervention might be acceptable if taken pursuant to resolution of a United Nations body or of a regional organization such as the Organization of American States.

The best that can be said about all of this international law jurisprudence is that there is no clear justification in international law for what we were doing in the Balkans. The worst is that we were clearly in violation of the UN Charter. Even so, domestic precedent of a sort backed legal arguments for US intervention. These arguments showed the migration of liberal constitutional law— the theory of a "living Constitution"— into international law.


“A Living Constitution?”

The theory of a “living constitution” dominates jurisprudence in the American legal academy and in the nation’s courts through “legal realism”— the notion that judges can make the law mean pretty much anything they want. Thus, for example, beginning with Franklin Roosevelt’s administration and its academic advisors, the U.S. Constitution’s Interstate Commerce Clause was read broadly enough to allow the federal government to intrude into virtually any domestic matter of state law, on the theory that what happened inside the states would eventually affect other states, and the nation at large.

The Clinton administration, which was so far committed to legal realism that it might best be described as “postmodernist,” used the New Dealers’ broad construction of the interstate commerce clause argument to support initiatives as diverse as the Federal Gun Free School Zones Act, which sought to forbid firearms in or near all the nation’s schools, or the Violence Against Women act, which sought to expand further the intervention of the Federal authorities in state prosecution of crime. The Clinton administration’s arguments about events in Serbia impacting other NATO countries and thus justifying the offensive actions of this defensive organization were cut from the same cloth. Its case for bypassing an express Security Council authorization for its Belgrade bombing — that the Security Council’s earlier expression of concern implicitly authorized armed intervention— belied the real difficulty: that Russia or China would have vetoed any attempt to secure express Security Council authorization.

The idea that to proceed from “implications” of Security Council action is consistent with the UN Charter resembles the U.S. Supreme Court’s argument regarding the unenumerated “right of privacy” said to flow from “penumbras and emanations” of various items in the Bill of Rights. Thus, in 1973, the heyday of expansive interpretation of Constitutional Law, the Supreme Court expanded the right of privacy into a prohibition against states forbidding first- term abortions in Roe v. Wade, and the “right” to secure an abortion became a part of the United States Constitution.

The Supreme Court has recognized so many such “rights” in the last few decades that it has evolved a “balancing test” which gives the Court complete discretion not only to create new rights but to limit others in the service of some purported Constitutional goal. Some scholars, in American law reviews (the traditional testing ground for radical American legal theories) have suggested a similar balancing test for international law, in which the UN, or perhaps the International Court of Justice, or now NATO, would balance the Charter’s guarantees of territorial integrity, non- intervention, and state sovereignty against the newly minted "fundamental human rights” guarantees to each individual, and allow the latter to prevail over the former. This is precisely what seems to be going on now. And the effect is that one can no longer rely on the “plain meaning” of words in the documents of domestic or international law.

It is, of course, completely unpredictable what precedential force intervention in the Balkans will have. But American Constitutional law of the last generation suggests that even the most egregious precedents are rarely overruled and newly minted “rights” quickly generate others. This may well be true of international “human rights.” Intervention in Kosovo has been justified to protect the rights of the ethnic Albanians to live in their home province, and one can imagine future “preventive interventions” dependent on the quality of the life and the extent to which expanded "fundamental human rights” are implemented. Much of the rhetoric employed against Milosevic turned on his status as a dictator, and several writers in the law reviews have urged that a basic component of “fundamental human rights” is popular sovereignty secured through democratic institutions. Some “human rights” now seem fairly conventional, like basic human dignity, which has been argued to include rights to shelter, food, clothing, and even meaningful employment. But, there are also disturbing redistributionist implications to much academic and UN human rights rhetoric. It is easy to imagine a regime of private property being overthrown by armed force to secure more dignity for all subject peoples. That experiment has, of course, been tried in the Soviet Bloc nations with disturbing results, but this lesson seems easily to be forgotten. The essence of the United States Constitution, at least in the minds of the Framers, was that it was an essential tool to protect both person and property, and our Bill of Rights is heavy on the protection of property rights and light on what are now regarded, in the international sphere, as “fundamental human rights.” More, for the Framers, the most fundamental human right was the right to determine one’s own destiny, or at least to exercise self-government through one’s elected representatives.

The UN Charter nods in the direction of self-determination and non-interference, but its ambiguity regarding "fundamental human rights” undercuts this assurance. For the last generation, the U.S. Supreme Court, in expansively interpreting the commerce clause, the Bill of Rights, and the Fourteenth Amendment, seriously restricted state and local rights of self-government. The risks of that happening on an international scale are real, and the process of eroding national sovereignty is the means.


Eroding Sovereignty

The action in Kosovo erodes that sovereignty, as does our ceding command of United States forces to NATO, or to the UN. International law has always been messy, the Law of Nations has always been unclear, and the national sovereignty we cherish is a fragile creation of the era of nation-states which began in the Reformation. It is only a few hundred years old, and could easily perish. Historically, international law’s basic principle was that might makes right, and the idea of the sovereignty of individual nations in the work of the great civilian treatise writers on international law— Grotius, Pufendorf, Burlemaqui, and Vattel— aimed to secure for nations the right to govern themselves. Even the famously xenophobic English common law embraced this attitude through the work of William Blackstone and Lord Mansfield, and it was early incorporated in American law through the great Federalist judges such as John Marshall, Joseph Story, and James Kent.

Statecraft has always required prudence, particularly where there are no clear abstract principles for guidance. If sovereignty is to be preserved, there will be a great need for such prudence, and a great need to resist the temptation to abuse our great military power in the pursuit of chimerical and dangerous ends. We may need to learn that we cannot seek to overturn every injustice, that every argument usually has at least two sides, and that the opportunities for disinformation and falsehood have multiplied exponentially in the information age.

Accordingly, we ought to proceed with extraordinary judgment, restraint, integrity and attention to our classic constitutional values, the most important of which are the protection of property and of self-government. The risk of generating harmful precedents is horrific, and the costs of inconsistency dreadful. Attacking Milosevic, especially in a manner that has little justification under international law while leaving “fundamental human rights” violations in Iraq, Tibet, or China untouched, may do little for human rights in the long run and radically undercut sovereignty and the rule of law now.

Indeed, as the NATO adventure in Kosovo suggested, and as several years' worth of articles in American law reviews have recently explored, it is unclear that this modern universalist conception of human rights can coexist with national sovereignty. Parenthetically it might be added that there are similarities between the problem of defining “human rights” in the Balkans and the current debate in Britain about adopting the Euro. It’s an interesting question: if the English conception of human rights— like the American— is bottomed on the collective human right of the people to establish and maintain their national government, is there a human right to have your own currency? Is the pound or the dollar the expression of a fundamental human right?

Consider the tendency in Europe today to follow American Constitutional practice, and in particular, the legal realism of the U.S. Supreme Court. The grafting of the European Convention on Human Rights into law in the United Kingdom might well lead to similar discoveries of new fundamental rights by British courts, following the American model.

What might soon happen in Britain is already underway in the European Court of Human Rights in Strasbourg worries me, and it is frankly alarming. It is bad enough for American courts to ignore the vital principle that legislators legislate and judges judge, but if English courts are eventually going to do it too, the days of looking to England for models of sound jurisprudence may soon end.


Law and Mystery

What worries me is that when American courts make up the rules, as our federal courts have been cheerfully doing since about 1937, and our state courts began to do in the sixties, they do so not only in violation of the principle of the rule of law, but in the service of a particular ideology that flies in the face of English and American tradition. If that tradition expressed in our Declaration of Independence, England’s Glorious Revolution, and Coke’s institutes is a collective conception of human rights, in which the right of the people, acting through their legislatures, is the expression of sovereign prerogative, then we are now in big trouble and so is England.

This is because, as the Supreme Court suggested in 1992 in a plurality opinion in what is for me the most troublesome U.S. Supreme Court case since Dred Scott, Planned Parenthood v. Casey, several Justices now may be marching to a different tune. In Planned Parenthood v. Casey, in the so-called “mystery passage,” Justices O’Connor, Kennedy, and Souter announced that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the state.” No one knows exactly what this means (and perhaps that is why this passage is now known as the “mystery” passage), but it somehow seemed to have been invoked by the plurality in Casey in support of their decision to find implied restrictions in the federal Constitution on state legislation regarding abortion.

The “mystery passage” has not yet been successfully invoked at the Supreme Court level to mint other new individual rights, but the effort is underway, and may soon succeed. The “mystery passage” conceives of human rights as rights of individuals, indeed as rights to be exercised in a regime that prizes human individuality above other values and that seems to think liberty itself depends on individuals concocting meaning utterly on their own. But not only is that not the way meaning is concocted— meaning passes through a cultural filter, and it is society, not individuality, that gives purpose to human life — the mystery passage is not the way the late eighteenth century conceived of human rights or liberty.


Liberty, Law, and Religion

For our eighteenth century jurists (and England’s as well), liberty was believed not to exist unless there was law, law could not exist without morality, and morality could not exist without religion. This is not the view of the modern American Supreme Court, which is terrified about allowing religion into the public sphere, but it was the nearly universal view of the early federal judges. They believed in human rights, but they believed that those human rights could only be exercised in accordance with revelation and in accordance with a benign creator’s plan for the universe and in accordance with a benign creator’s grant of inalienable rights, not only to life, liberty, property, or the pursuit of happiness, but also to self-government and national identity.

Too much individual liberty, our framers believed, leads to license, and license undermines the civic virtue needed to maintain a republic, or even a Constitutional monarchy. The United States, the United Kingdom, and the European Union are now sailing into uncharted waters, and nothing less than the Anglo-American tradition of the rule of law is at stake.

New, radically individualistic conceptions of human rights in America and Britain could lead to the abandonment of ancient truths. England’s champions of the rule of law— men such as Coke, Blackstone and Burke— were enormously influential to the framers of the U.S. Constitution. In the United States, competing and complementary sovereignties and the separation of governmental powers have long guaranteed liberty; Britons, until recently, relied on representing different orders in society in their government. Now that Britain is moving closer to republicanism and to written guarantees of human rights, we need to consider carefully just how these human rights ought to be conceived, how they ought to be protected, and just what human rights are fundamental.

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