In “The War of Law” (July/August 2013), Jon Kyl, Douglas Feith, and John Fonte purport to explain the state of international law and how it “undermines democratic sovereignty.” Their portrayal, however, hardly rises above caricature. Their legal prescriptions ignore constitutional history and, if followed, would drastically weaken U.S. foreign policy. The authors may not like the contemporary practice of international law, but their own ideas are painfully antiquated, better suited to an insular nineteenth-century nation than the great power the United States has become.
The authors mount a wide-ranging attack on enemies of their own imagining: dangerous “transnationalists” (including one of us) who are out to undermine “basic American principles” by promoting U.S. compliance with international law. Such compliance, they argue, comes at the expense of the constitutional system, democratic accountability, and U.S. sovereignty. But their hodgepodge of examples proves nothing of the kind.
AMERICAN AS APPLE PIE
First of all, what “basic American principles” are being violated by the United States’ adherence to international law? After all, the very first paragraph of the Declaration of Independence calls for “a decent respect to the opinions of mankind.” The founders plainly understood that the nation could not flourish, or even survive, without giving due respect to the laws that governed peaceable relations among sovereign states.
Nor is it clear what constitutional values Kyl, Feith, and Fonte think are threatened by adherence to international law. The founders rejected the right of other countries to hijack the United States’ foreign relations: they granted clear supremacy to the Constitution, which no treaty can override, and to Congress, which can supersede any treaty by later legislation. But the framers of the Constitution clearly viewed international law as an essential part of the country’s legal order, accountable to and reflective of the will of the American people. Indeed, they set a stringent condition under which international treaties would be considered lawful: passage by a two-thirds supermajority of the Senate.
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