American Exceptionalism (cont'd): Legal Views

In contrast to the philosophers and theologians at Friday's St. Thomas symposium, who were all critical of the idea of the U.S. as exceptional -- including exceptional in the sense of not needing to be constrained by international human rights law to the same degree as other nations -- several of the law professors defended, to one degree or another, the U.S. resistance to international human rights law.  (Although all the symposium participants were quite good, there could have been a little more diversity of views within each panel: a theologian more to the right, and a law professor more to the left.)

Jack Goldsmith (Harvard) offered a quite convincing case, so far as I could tell, for the U.S. practices of making reservations on certain issues when it signs treaties and requiring domestic legislation in order for a treaty to be enforced.  First, he argued, the U.S. is not exceptional in this regard, since England and most other liberal democracies also make reservations and/or treat treaties as non-self-executing.  Second, the practice of reservations actually shows respect for international human rights law:  the U.S. and other liberal democracies take those obligations seriously and won't sign on to a provision that they can't commit to enforce, while dictatorships around the world sign onto the treaties with no reservations and then ignore the obligations.  Third, to require domestic legislation for enforcement of a treaty makes sense for a liberal democracy with a developed civil-rights enforcement system, because the sudden direct application of (often vague) international human rights law could affect that system in unforseen and negative ways.  For all these reasons, Goldsmith argued, the focus should be on the moral substance of U.S. practices (like the death penalty or prison conditions), not on whether the U.S. signs on unreservedly to human rights treaties.  I'd be interested to know if others see flaws in these arguments, which seemed pretty persuasive to me.

John Harrison (Virginia) made arguments that I -- admittedly a non-expert -- found somewhat less convincing.  He used tools of federalism analysis to assess whether human rights law should be made locally (i.e. by the individual nation) or centrally (i.e. through international bodies and documents).  He argued that the standard reasons for central decisionmaking -- interactions between various local acts, and the superiority of the central decisionmaking process -- don't apply in the case of human rights law, at least not with respect to U.S. behavior.  As to "interaction" arguments, there's no particular need for a coordinated uniform standard (as there is with e.g. which side of the road to drive on); there are no material externalities from human rights problems in the U.S. (e.g. we don't create lots of refugees); and the U.S. doesn't participate in a race to the bottom (e.g. allowing economic abuses to attract investment).  As to "process" arguments, the international human rights process is less democratic than the U.S. lawmaking process, and it is not improved just because it adds lots of non-American perspectives (many of those are bad, e.g. the perspectives of dictatorships).

Although Professor Harrison raised several good points, I had two negative reactions to his arguments.  First, some of his claims were debatable, as he acknowledged:  for example, the U.S. (or individual states) might in fact relax some norms (such as workers' protections) in order to attract investment.  Second and more fundamentally, I don't believe that we typically analyze federalism issues with respect to particular states -- do there need to be federal protections for workers in Minnesota?  In Texas? -- and then adopt a federal standard for one state while letting another act on its own.  Rather, we ask whether the particular issue(s) should be left to states in general.  There are some exceptions, to be sure:  preclearance requirements for some states under the Voting Rights Act, stricter air-quality standards for some cities.  But in general, we say that if a matter should be left to the states, it should be left to all the states (subject, perhaps, to some minimum federal requirements).  I assume that part of the reason for this is the intuitive sense that treating states unequally will create resentment and make enforcement of norms more difficult.  If this is true for U.S. federal-state matters, where there is a central government with relatively effective means for enforcing its will, I'd guess it's even more true for norms across nations, where the enforcement mechanism is weaker and compliance therefore rests even more on the intuitive fairness of the system.  There are many international human rights laws that we want Iran, China, Egypt, and other nations to follow; but our moral standing to press such arguments is greatly weakened if we disregard such norms whenever we have a problem with them.  Even if we set forth reasons why we're different from those nations and don't need to be subject to international norms, those reasons will inevitably be seen as self-serving (which is a major cautionary point about American exceptionalism, one that that Professor Ryn raised in his talk earlier in the day).

I unfortunately missed the comments by Philip Bobbitt (Texas).  But MOJ friend Paolo Carozza (Notre Dame) gave a very lucid talk on the various reasons why it is difficult to get international human rights norms ratified in the U.S. and implemented in our domestic law.  He discussed not only the extra hurdle the U.S. Constitution throws up for treaty ratification (2/3 of the Senate versus a mere parliamentary majority, typically, in comparable nations), but also the not (reasonable) perception that the international human rights law process is less "democratic" than the U.S. legislative process.  Again, the symposium discussion might have benefitted from a wider range of views on the legal panel -- a strong lefty vigorously arguing for complete U.S. adherence to the international human rights system.  But all of the participants that I heard on the two panels were good.

Papers from the symposium -- theological, philosophical, and legal -- should appear in the University of St. Thomas Law Journal by next spring.

Tom B.