When major programs of President Roosevelt's New Deal were blocked by
the Supreme Court during the 1930s, Roosevelt insisted that the Court
must learn to apply a more "modern" view of the Constitution. Soon
enough, a reshaped Court did adopt a much more permissive approach
and scholars who liked the result spoke of a "living Constitution."
We heard more about "evolving standards" and a "living Constitution"
from defenders of judicial activism in the 1960s and 1970s. It seemed
to offer the prestige of a higher law without the inconvenience of a
fixed law. But sometimes we really want a constitution to have fixed
and reliable limits. So, for example, many of those who once praised
the "living Constitution" have, in recent months, invoked with great
solemnity the "law" of impeachment, which, they say, was "fixed" by
the Framers of the Constitution in the eighteenth century.

If nothing else, America's months of debate about impeachment remind
us that many Americans care deeply about "the rule of law"--and
disagree among themselves on what it means. Even those most devoted
to defending President Clinton have appealed to arcane legal
arguments about the proper application of the Constitution's
provisions on impeachment.

But our own law may not be the only law that determines what happens
in this country. At the very moment when Americans were so
preoccupied with debates about the meaning of perjury or the
requirements for impeachment, a series of events around the world
offered a foretaste of what may become the next subject of heated
legal debate for the United States: the proper reach of international
law.

In Britain, the House of Lords decided last December that Augusto
Pinochet could be held for extradition to Spain, where a magistrate
sought to try the former Chilean dictator for tortures and murders
committed by the Chilean government during Pinochet's period as chief
of state. Meanwhile, halfway around the world, the government of
Australia struggled to defend itself before a UN authority, which
condemned the Australian government for allowing a uranium mine to be
developed in the vicinity of an Australian national park. And here in
the United States, the U.S. Supreme Court, after repeated displays of
its own impatience with judicial second-guessing of capital
sentences, suddenly ordered a halt to an execution in Texas and
agreed to hear an appeal claiming that capital punishment in this
case would violate international standards.

All these cases reflect the deepening insinuation of international
law into the internal affairs of sovereign states. More than that,
they raise sharp questions about the status of this emerging body of
law. No one of these episodes marks a historic turning point in
itself, but they are all straws in the wind. Lots of things are now
rustling in that wind and it is gaining in force. We used to think
that the Constitution would serve as a windbreak, but that is no
longer so clear. To gauge the extent of the challenge it is necessary
to look briefly first at the theoretical assumptions on which our
Constitution was grounded, and in light of which it used to be
interpreted on matters of international law.

The Traditional American View and its Modern Rival

Resistance to international impositions has a long history in
American political and constitutional thinking. Indeed, the United
States was founded on a particular understanding of the limited
authority of an external law applied to American society. For the
American Revolution was a rebellion against the imposition of
transnational law, the precise issue being whether the British
Parliament possessed the rightful authority to make laws for the
internal affairs of the colonies. The colonists insisted that, as
they had never been represented in the British Parliament, they could
not accept such authority. The British disagreed, and so brought on a
revolutionary conflict.

Thus, when the Declaration of Independence asserts the "self-evident"
truth that all men are "endowed by their Creator with certain
unalienable rights", it proceeds almost at once to the conclusion
that governments "derive their just powers from the consent of the
governed." The specific grievances against British rule, enumerated
in the body of the Declaration, make it plain that "just powers" are
those constrained by law, and law derives from the enactments of
elected legislatures. In short, no legislature, no real law.

The argument of the American Founders was not a sentimental plea for
"participation." The Declaration speaks of consent to the "just
powers" of government, not to its every particular action. The point
of emphasizing constraints of law and legislative consent is that
government remains, at some level, unavoidably about coercion: one
submits to lawful government in the understanding that everyone else
will be bound by the same law.

Americans were ready to recognize that law requires force to make it
effective. Only five years after the end of the Revolutionary War,
they adopted a new Constitution precisely to assure more reliable
force to American government. The argument for the new Constitution
as opposed to the Articles of Confederation was that reliable common
policies required a common government, with its own army, its own
sources of revenue and its own powers to make and enforce laws. But
the underlying point was the same as in the Revolution: such powers
are acceptable only if placed under the ultimate control of a common
legislature.

Since the world as a whole has no legislature, this view might seem
to leave no place for any sort of international law. But that was not
quite the view of the Founders. The Constitution provided that
treaties adopted by the United States (along with federal statutes)
would be "the supreme law of the land." But it also stipulated that
Congress should have the power to "define and punish offences against
the law of nations"; and James Madison, often called the "father of
the Constitution", thought it worthwhile to publish a lengthy and
quite scholarly disquisition on the "law of nations" when he served
as secretary of state under President Jefferson.

The founding generation and its successors did not see this as a
threat to government by consent. On the contrary, some sort of
international understanding is actually required by the doctrine of
government by consent, since such government can only be effective if
outside powers refrain from interfering in it. The Declaration of
Independence itself appeals to such common understandings when it
asserts the right of American states, "as free and independent states
. . . to levy war, conclude peace, contract Alliances, establish
Commerce and to do all other Acts and Things which Independent States
may of right do" [emphasis added].

The "law of nations", as expounded in the leading European texts of
that era, was focused on the relations of sovereign states, precisely
with an eye to avoiding unnecessary affronts. It was concerned with
such matters as security guarantees for diplomats and for neutral
ships on the high seas. It was precisely to emphasize this focus of
the "law of nations"--a law defining the way states deal with each
other, and not how they govern at home--that Jeremy Bentham coined
the term "inter-national law", just two years after the Framers
convened in Philadelphia.

What made it seem plausible to speak of "international law" at the
time of the American founding, and throughout the nineteenth century,
was not only that this law was relatively undemanding, but that it
was associated with a body of long-standing custom in inter-state
dealings such that conformity with it could actually be expected of
other states--or, if necessary, demanded. In the background to
expectations of conformity was the assumption that the violation of
clear rules was an invitation to retaliation, perhaps even by
force--so that the law was not, after all, entirely removed from
force. International law was seen as the law that sovereign states
were willing to accept and also to insist upon. Whether or not it was
really or fully "law", it rarely entered into national courts,
because (apart from disputes about private property seized in naval
conflicts on the high seas) it rarely concerned the rights of
individuals.

In this area, as elsewhere, America's founding doctrines seem to have
exerted a lasting impression on subsequent American policy. The
United States has generally held back from grand international
schemes that might result in the imposition of international
standards onto American domestic affairs. Most notably, the United
States long refused to ratify international human rights conventions
(along with labor standards proposed by the International Labor
Organization). The Senate ratified a few human rights conventions in
the past decade, but then only with severely limiting reservations,
denying them any direct effect in domestic law. Critics have always
complained that fuller participation would bind the United States to
standards to which others would only pay lip service. In other words,
for the critics these were not bona fide treaties at all but simply
devices to shift fundamentally internal matters--how the American
government deals with its own citizens--to international forums not
directly accountable to the American people.

By now, this stance may seem less an expression of fundamental
liberal principles than of particular American crochets,
anachronistic survivals of eighteenth-century dogmas that make little
sense even to other Western democracies. Certainly, the evolution of
Europe's Common Market into the current European Union is a powerful
challenge to the assumptions of the American Founders. The EU has an
extremely ambitious regulatory agenda, reaching deeply into the
internal policies of the member states. Yet it has no common
army--and could not have, since some member states are committed to
the NATO alliance and others are pledged to neutrality. The EU does
not even have its own self-sustaining executive or law enforcement
machinery, relying instead on the governmental machinery of the
member states for ground-level enforcement and implementation of EU
policies. And while it lacks the conventional elements of power or
force, the EU also lacks a true legislature. There is a popularly
elected assembly, called the European Parliament, but it is
essentially an advisory body, with neither the power to tax nor the
power to legislate.