22 Pages Posted: 28 Feb 2013 Last revised: 1 Jun 2013
Date Written: 2013
Sovereigntism is having a good run in the academy and the courts. Scholars skeptical of international law succeeded in prompting a searching reexamination of the Restatement (Third) of Foreign Relations Law and the conventional wisdom it had come to represent. Sovereigntist positions have found a receptive audience in recent decisions of the Roberts Court, with additional victories just over the horizon. But sovereigntism is bound to fail. Massive material changes in the nature of global interaction will overwhelm sovereigntist defenses, which (notwithstanding their constitutional pedigree and apparent gravity) are in the end incapable of stemming the tide. International law is insinuating itself into U.S. law through multiple channels. In the end, globalization is not a quantity to be rejected, accommodated, or accepted as a policy option. The Constitution will not be able to plug the gaps.
This essay considers four clusters of cases that appear to evidence sovereigntism’s continued ascendancy, relating to self-execution, the Alien Tort Statute, the detention of terror suspects, and the use of international law in constitutional interpretation. Although these clusters appear to vindicate sovereigntist perspectives, short-term victories are likely to be reversed by material forces of globalization. The Constitution will inevitably and radically adapt to the changed international context.
Keywords: foreign relations law, globalization, international law
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