Globalization and Sovereignty

Julian Ku, Maurice A. Deane School of Law at Hofstra University
John Yoo

This paper was originally presented at a symposium held at the American Enterprise Institute in Washington, D.C., on June 4, 2012. The symposium was entitled “I Pledge Allegiance to the United... Nations? Global Governance and the Challenge to the American Constitution.”

Abstract

Globalization represents the reality that we live in a time when the walls of sovereignty are no protection against the movements of capital, labor, information and ideas--nor can they provide effective protection against harm and damage.This declaration by Judge Rosalyn Higgins, the former President of the International Court of Justice, represents the conventional wisdom about the future of global governance. Many view globalization as a reality that will erode or even eliminate the sovereignty of nation-states.The typical account points to at least three ways that globalization has affected sovereignty. First, the rise of international trade and capital markets has interfered with the ability of nation-states to control their domestic economies. Second, nation-states have responded by delegating authority to international organizations.Third, a “new” international law, generated in part by these organizations, has placed limitations on the independent conduct of domestic policies.

These developments place sovereignty under serious pressure. But the decline of national sovereignty is neither inevitable nor obviously desirable. Nation-states maintain the current world order. Sovereignty allows nations to protect democratic decision-making and individual liberties. Nor does robust respect for sovereignty demand the rejection of globalization or international cooperation.

We offer a new framework for accommodating globalization with sovereignty. Our proposal shifts the focus away from Westphalian sovereignty, which grants nations complete autonomy within their territories, and toward “popular sovereignty”--the right of the American people to govern themselves through the institutions of the Constitution. Article VI's Supremacy Clause creates a hierarchy of federal law that places the Constitution first, followed by “the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States.” This establishes the Constitution's superiority over all other authorities, including international laws and norms. As long as the Constitution remains the exclusive source of lawmaking authority within the United States, the regulation of globalization must occur through the political and legal system created by the Constitution.

In this essay, we will first define “globalization.” We will then explore its impact on national sovereignty and the rise of international institutions. Finally, we will consider how popular sovereignty can accommodate globalization through the Constitution's separation of powers and division of authority between the federal and state governments.