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An Inward- or Outward-Looking Constitution?

Tuesday, Sept. 30, 2008

Noah Feldman's cover article in this past Sunday's New York Times is a must read. Feldman provides useful background on how the decisions of the U.S. Supreme Court are increasingly affecting foreign policy.

His framing of the debate surrounding the intersection of constitutional law and international law is also quite useful. He describes the two sides of the debate as "conservative and inward-looking" vs. "liberal and outward-focused," and illustrates how in two recent decisions -- Boumediene v. Bush and Medellín v. Texas -- the liberal and conservative view, respectively, each notched a victory. Feldman writes:

The Boumediene decision saw the Constitution as facing outward, expanding and promoting the rul of law throughout the world. The Medellín decision, by contrast, saw the Constitution as a domestic blueprint designed to preserve and protect the United States from foreign encroachment, even at some cost to the international rule of law.

The swing vote in these two cases was Justice Kennedy, who in both cases "acted to uphold the prerogatives of the Supreme Court -- against the president and Congress in the Guantanamo case, and against the international court in the Medellín decision."

Feldman does an admirable job of explicating the arguments and concerns of each side in this debate. While conservatives worry about U.S. sovereignty, and see the European Union as an example of how ceding sovereignty to international law or international institutions can undermine democracy, liberals argue that the benefits conferred on the United States by helping to promote an international order based on the rule of law outweigh concerns related to sovereignty.

Feldman ultimately concludes that, in the absence of any "single, enduring answer" to this question, the question must become "where do we need the Constitution to look right now?" His answer is that the current moment calls for an "outward-looking" Constitution, and he calls on the justices of the Supreme Court to be "sensitive to the demands of history" when deciding cases that will effect U.S. foreign policy (can you hear the originalists groaning?). Here's Feldman's argument for an outward-looking Constitution:

. . . the Constitution must be read to help us remember that while the war on terror continues, we are also still in the midst of a period of rapid globalization. An enduring lesson of the Bush years is the extreme difficulty and cost of doing things by ourselves. We need to build and rebuild alliances -- and law has historically been one of our best tools for doing so. . . .

Our leadership matters for reasons both universal and national. Seen from the perspective of the world, the fragmentation of power after the cold war creates new dangers of disorder that need to be mitigated by the sense of regularity and predictability that only the rule of law can provide. Terrorists need to be deterred. Failed states need to be brought under the umbrella of international organizations so they can govern themselves. And economic interdependence demands coordination, so that the collapse of one does not become the collapse of all.

From a national perspective, our interest is less in the inherent value of advancing individual rights than in claiming that our allies are obligated to help us by virtue of legal commitments they have made. . .

Law comes into being and is sustained not because the weak demand it but because it is a tool of the powerful -- as it has been for the United States since World War II at least. The reason those with power prefer law to brute force is that it regularizes and legitimates the exercise of authority. It is easier and cheaper to get the compliance of weaker people or states by promising them rules and a fair hearing than by threatening them constantly with force. . . .

In essence, then, Feldman provides a liberal internationalist argument for an outward-looking Constitution. Whether you agree with his conclusion or not, the article is a very useful primer on an important debate that isn't going away anytime soon.