Sunday, February 1, 2009
Rob Knowles (NYU Law) just posted American Hegemony and the Foreign Affairs Constitution on ssrn; the piece is also forthcoming in the Arizona State Law Journal. This is a thoughtful article, coupling international relations theory with constitutional law and arguing for a more robust judicial role in American foreign affairs. I highly recommend it.
Knowles's basic argument is that America's role in the world has changed in the post-Cold War world, but that U.S. constitutional law--and particularly judicial deference to the President in foreign affairs--has not caught up. More particularly: We've moved from a realist world, where judicial deference made a little sense, to a hegemonic world, where it doesn't.
Knowles first shows how judicial deference is based upon functional justifications that map onto a realist understanding of the world order. In other words, realism provides the basis for the functional justifications of judicial deference in foreign affairs. United States v. Curtiss-Wright is the pivotal (and paradigmatic) case. Knowles:
A lay version of realism became incorporated into constitutional foreign relations law largely through the landmark 1936 decision, Curtiss-Wright. This completed the transformation to an executive-centered understanding of the foreign affairs Constitution driven by America's acquisition of an empire and rise to great power status.
But Knowles argues that this mapping, and the resulting judicial deference, created more problems than it solved. Again, Knowles:
First, this classic realist model does not accurately depict the actual functioning of the branches in foreign affairs. For example, although foreign relations is said to require that the United States "speak with one voice," Congress and the President often conflict on foreign policy. Second, as a descriptive matter, the realist model encounters boundary problems because globalization will continue to blur the distinction between domestic and foreign affairs issues. Third, as a normative matter, the realist model, if accepted in full, would require total deference: it tells us very little about how best to balance foreign policy needs against other constitutional values.
The realist roots of judicial deference are therefore problematic. But worse: We no longer live in a world based on realism. Knowles argues that our post-Cold War world is better understood in hegemonic terms, where the U.S. is the hegemon, notwithstanding threats from "transnational terrorist groups . . . rogue states, and the proliferation of WMDs . . . ." In this hegemonic world, judicial deference no longer stands on its realism-based functionalist justifications; instead, the hegemonic world order gives rise to different functionalist justifications that weigh in favor of judicial scrutiny. Knowles:
The hegemonic model aligns the assessment of institutional competences more closely with the positive reality of the international system. It brings more coherence to the courts' treatment of foreign affairs by largely "domesticating" it. And the hegemonic model reveals additional functional justifications for greater judicial involvement in foreign affairs controversies.
Knowles's point is normative, of course; but it is also descriptive. For example, Knowles argues that this "greater judicial involvement" is reflected in the Court's post-9/11 enemy combatant cases.
Knowles's nearly 70-page article is more detailed, nuanced, and complex than my brief summary; this makes it all the more engaging. For example, he paints an expansive landscape of IR theory--plenty sufficient to provide a solid grounding for his argument, and more to provide his readers a broad theoretical perspective. Similarly his analysis of the current world order is thorough and insightful. Both of these sections are rich enough to read as ends in themselves, let alone for their places in his larger argument.
But what I appreciate most about Knowles's piece is his careful tracing of constitutional doctrine to its underlying assumptions within IR theory. This is the backbone of the piece, and it's where Knowles is at his strongest and most creative.
If Knowles is right--and he presents a very persuasive case--his piece is further evidence that we in the law are always a couple decades behind whatever other discipline we decide to embrace. And if he's right, his article could be an important step in getting us caught up.
I highly recommend this very thoughtful piece.