The Two World Orders

In 1945, when victory was at hand and his own death only days away, Franklin Roosevelt wrote that the world’s task was to ensure “the end of the beginning of wars.” So Roosevelt called for a new system of international law and multilateral governance that would be designed to stop future wars before they began. Hence, the irony of America’s current position: More than any other country, the United States is responsible for the creation of the international law system it now resists.

America’s leadership in the new internationalism was, at the beginning, so strong that one might be tempted to see today’s U.S. unilateralism as a stunning about-face, an aberration even, which may yet subside before too much damage is done.

How then did the United States move from its postwar position of leadership in the new international order to its present position of outlier?

The Cold War played an essential role in the change, fracturing the new international order before it had taken root. At the same time, the Cold War also had the effect of keeping the Atlantic alliance intact for many decades by suppressing divisions that would show themselves in full force only after 1989…The most fundamental of those divisions had been the most invisible: From the start, the postwar boom in international and constitutional law had had different meanings in America and Europe—because the war itself meant different things in America and Europe.

At the risk of overgeneralization, we might say that for Europeans (that is, for those Europeans not joined to the Axis cause), World War II, in which almost 60 million people perished, exemplified the horrors of nationalism. Specifically and significantly, it exemplified the horrors of popular nationalism. Nazism and fascism were manifestations, however perverse, of popular sovereignty. Adolf Hitler and Benito Mussolini rose to power initially through elections and democratic processes. Both claimed to speak for the people, not only before they assumed dictatorial powers but afterward, too, and both were broadly popular, as were their nationalism, militarism, repression, and, in Hitler’s case, genocidal objectives. From the postwar European point of view, the Allies’ victory was a victory against nationalism, against popular sovereignty, against demo­cratic excess.

For Americans, winning the war was a victory for nationalism—that is to say, for our nation and our kind of nationalism. It was a victory for popular sovereignty (our popular sovereignty) and, most fundamentally, a victory for democracy (our democracy). Yes, the war held a lesson for Americans about the dangers of democracy, but the lesson was that the nations of continental Europe had proven themselves incapable of handling democracy when left to their own devices. If Europe was to develop democratically, it would need American tutelage. If Europe was to overcome its nationalist pathologies, it might have to become a United States of Europe.

The United Nations, the emerging European Union, and international law in general are expressly understood in Europe as constraints on nationalism and national sovereignty, the perils of which were made plain by the war. They are also understood, although more covertly, as restraints on democracy, at least in the sense that they place increasing power in the hands of international actors (bureaucrats, technocrats, diplomats, and judges) at a considerable remove from popular politics and popular will.

The counterstory was as follows: When founding the United Nations, writing the first conventions on international rights, creating constitutions for Germany and Japan, and promoting a United States of Europe, Americans were bestowing the gifts of American liberty, prosperity, and law, particularly American constitutional law, on the rest of the world.

In the American imagination, then, the internationalism and multilateralism we promoted were for the rest of the world, not for us. What Europe would recognize as international law was law we already had. The notion that U.S. practices—such as capital punishment—held constitutional by our courts under our Bill of Rights might be said to violate international law was, from this point of view, not a conceptual possibility. Our willingness to promote and sign on to international law would be second to none—except when it came to any conventions that might require a change in U.S. domestic law or policy.

It was impossible for Americans to see the new international constitutionalism as Europeans saw it—a constraint on democratic nationalism—for that would have contradicted America’s basic understanding of constitutional democracy.

It’s essential here to distinguish between two conceptions of constitutionalism. The first views the fundamental tenets of constitutional law as expressing universal, liberal, Enlightenment principles, whose authority is superior to that of all national politics, including national democratic politics. This universal authority, residing in a normative domain above politics and nation-states, is what allows constitutional law, interpreted by unelected judges, to countermand all governmental actions, including laws enacted by democratically elected legislators. From this perspective, it’s reasonable for international organizations and courts to frame constitutions, establish international human-rights laws, interpret these constitutions and laws, and, in general, create a system of international law to govern nation-states. I call this view “international constitutionalism.”

…international constitutionalism, which is the dominant constitutional worldview in Europe. From this viewpoint, it’s not particularly important for a constitution to be the product of a national participatory political process. What matters is that the constitution recognize human rights, protect minorities, establish the rule of law, and set up stable, democratic political institutions…

The alternative to international constitutionalism is American, or democratic, national constitutionalism. It holds that a nation’s constitution ought to be made through that nation’s democratic process, because the business of the constitution is to express the polity’s most basic legal and political commitments…Over time, from this perspective, constitutional law is supposed to evolve and grow in a fashion that continues to express national interpretations and reinterpretations of the polity’s fundamental commitments.

In American constitutionalism, the work of democratically drafting and ratifying a constitution is only the beginning. Just as important, if not more so, is the question of who interprets the constitution. In the American view, constitutional law must somehow remain the nation’s self-given law, even as it is reworked through judicial interpretation and reinterpretation, and this requires interpretation by national courts. By contrast, in international constitutionalism, interpretation by a body of international jurists is, in principle, not only satisfactory but superior to local interpretation, which invariably involves constitutional law in partisan and ideological political disputes.

The overtly political nature of American constitutional law stuns Europeans; indeed it’s one of the features of the American system at the root of the differences between American and European constitutionalism. Claims about “American realism” are often exaggerated, but there is undoubtedly in the United States a greater understanding than in Europe that all law, including judge-made law (i.e., judicial decisions), and even judge-made constitutional law, is a political product…By contrast, the processes through which EU law has emerged so far betray a disconnection with, and even a disrespect for, democratic processes that would be unacceptable as a basis for constitutional transformation in the United States.

Americans at bottom do not believe in the claims made for a nonpolitical, neutral constitutional law. They know that judges’ values inevitably inform constitutional law. Europeans tend to have a different understanding. To be sure, there was for a long time, and perhaps still is, a European tradition of distrust of judges, especially constitutional judges, shared by left-wing and right-wing European political thinkers. Yet this skepticism about “government by judici­ary” coexisted with a belief in the possibility of an expert, neutral bureaucratic rationality and a dogmatic, apolitical legal reason. The result was a deeply ambiguous attitude toward judicial review and constitutional law.

From the American perspective, national constitutional courts are an essential feature of constitutional law, and it’s critical that constitutional interpretation remain interwoven with the nation’s processes of democratic self-governance. This is done in various ways: through a politically charged judicial nomination mechanism; through judges’ membership in the national polity and the nation’s particular political and legal culture; through the always-open possibility of amendment; and, perhaps most important but least understood, through periodic but decisive contests between the judicial and political branches…The ideal is not to make constitutional courts responsive to popular will at any given moment, but to make sure that constitutional law remains answerable to the nation’s project of political self-determination over time.

Contemporary American constitutional theorists are unendingly concerned with the so-called countermajoritarian difficulty: Because constitutional law allows unelected judges to override the outcomes of the majoritarian democratic process, it’s potentially in conflict with democracy. Europeans constitutionalists used to share this obsession, but since 1945, and particularly with the recent explosion of “international human-rights” law, the countermajoritarian difficulty rarely figures in European thinking any more. The reason is that Europeans have embraced international constitutionalism, according to which the whole point of constitutional law is to check democracy. For Americans, constitutional law cannot merely check democracy. It must answer to democracy—have its source and basis in a democratic constitutional politics and always, somehow, be part of politics, even though it can invalidate the outcomes of the democratic process at any given moment.

For Europeans, a great marker of successful constitutional development is international consensus and uniformity. They point to such consensus as if agreement through­out the “international community” were itself a source of legal validation and authority. The more consensus there is on a constitutional principle throughout the international community, the greater the strength of that principle. Americans do not share this view.

Whether out of hubris or principle, or both, the United States has not understood its support for international law and institutions to imply a surrender of its own commitment to self-government. As the international system became more powerful, and international law diverged from U.S. law, the United States inevitably began to show unilateralist tendencies—not simply out of self-interest but because the United States is committed to democratic self-government.

Three specific developments over the past decade helped press the United States toward unilateralism: the 1999 military intervention in Kosovo; a growing skepticism about international law, including the concern that international law might be used as a vehicle for anti-Americanism; and the events of September 11, 2001. Each merits additional consideration.

For many in the United States, the Kosovo intervention stands today as a unilateralist precedent. Because the UN Security Council never approved the use of force in Kosovo, international lawyers regarded the U.S.-led bombing as plainly illegal. But this asserted illegality has not caused Amer­icans to regret the intervention. On the contrary, it has reinforced the view that events in the former Yugoslavia represented an appalling failure on the part of the international law system, the United Nations, and, in particular, the nations of Eur­ope. From the American perspective, if the UN-centered international law system could not bring itself to authorize the use of force in Kosovo, then that system was incapable of discharging the responsibility that is an essential corollary of authority.

Kosovo is a doubly significant precedent because it illustrates how Americans do not quite recognize the UN Charter as law.

Kosovo symbolizes not merely an exceptional, exigent circumstance in which the United States was justified in going outside the UN framework, but rather an entire attitude about that framework, according to which the UN system, while pretending to be a legal system, isn’t really a legal system.

When the international community throws down the gauntlet over the death penalty in America while merely clearing its throat about the slaughter in Yugoslavia, Americans can hardly be blamed if they see a sign that an anti-American agenda can be expected to find expression in international law.

The events of September 11, 2001, had obvious implications for U.S. unilateralism…Americans were stunned by the prevalence and intensity of anti-American sentiments expressed all over the world…A period of soul-searching followed in the United States. It lasted maybe a month and ended with a characteristically American reaction: to hell with them.

So began the rhetoric that continues to escalate today. The White House took increasingly belligerent positions, which elicited new denunciations of our bullying, and the denunciations spurred Americans to feel more and more that they would have to fight this world war on their own.

…international law is a threat to democracy and to the hopes of democratic politics all over the world. For some, that may be a reason to support internationalism; for others, a reason to oppose it. Either way, the fundamental conflicts between democracy and international law must be recognized.

The United Nations and the other institutions of international law take world government as their ideal. In theory, there’s no necessary conflict between democracy and the ideal of a world government. A world government could be perfectly democratic—if there were world democracy. But at present, there is no world democracy, and, as a consequence, international governance organizations are, at present, necessarily and irremediably antidemocratic.

Nor are international organizations undemocratic only in themselves; they undermine the hopes and vitality of democratic politics elsewhere. The point is familiar to every nation in Latin America that has seen its internal policies dictated by IMF or World Bank directives.

The irony is that the United States remains the world’s greatest champion of internationalism in economic affairs. Weaker countries correctly perceive U.S.-led marketization programs as deeply undercutting their own ability to decide for themselves what their social and economic policies should be. To be sure, the United States does not exactly force economic policy on other countries. Ruling elites agree to the emasculation of their countries’ politics in order to get their hands on the money. But the result is the same: Democracy is hollowed out.

So all the talk of U.S. unilateralism needs an important qualification. The United States plays utterly contradictory roles on the international stage: It champions multilateralism on the economic front, because worldwide free trade and marketization are perceived to serve U.S. interests, and resists it elsewhere.

Claims that any particular multilateral order, whether humanitarian or economic, is a necessary condition of democracy should be received with extreme skepticism…To be sure, in some cases of national crisis and political breakdown, international governance has brought about stability and democratization. And for the many nations incapable at present of sustaining a flourishing democratic politics, international law offers the hope of economic and political reforms these nations cannot achieve on their own. But every time a functioning, self-determining nation surrenders itself to the tender mercies of international economic or political regimes, it pays a price. The idea that men and women can be their own governors is sacrificed, and democracy suffers a loss.