Globalization and the (Foreign Affairs) Constitution

Abstract:     
This article asserts the consequentiality of global context for the development of constitutional law, past and future. The article offers an account of the differential doctrines of foreign relations law in which they are contingent on the historical architecture of international relations, and explains why these doctrines may no longer be sustainable against the increased institutionalization of interstate relations, the disaggregation of the nation-state, and heightened international economic competition. Insofar as these elements of globalization lower the risk of catastrophic interstate conflict and take account of actors outside of the traditional diplomatic apparatus, differential foreign relations doctrines departing from baseline norms of judicial review, federalism, and individual rights are appropriately contested. These doctrines, the article argues, were once dictated by a hostile, unstable international system and the threats that it posed to the nation; all should be reexamined in globalization's wake, the events of September 11 notwithstanding. In this respect, the article parts ways with other voices in current foreign relations law debates that deploy standard, domestically-oriented metrics of constitutional discourse. The article also sketches, though only suggestively, the possibility that global context may come to determine constitutional norms beyond the traditional foreign relations law canon.

Accepted Paper Series