Toward a New Economic Constitution: Judicial Disciplines on Trade Politics

Abstract

This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double standard creates images of "American Exceptionalism" and undermines the effectiveness of the multilateral trading system. As a solution, the paper suggests certain judicial options to discipline protectionist trade politics, such as structural and substantive due process as well as internalization of free trade principles. It argues that measures suspected as protection should undergo strict scrutiny, and should fail absent compelling justifications for them. It also submits that certain essential global trading norms, such as the non-discrimination principle, may be internalized by the Court under constitutional doctrines, such as Charming Betsy.

Keywords: global trade, Lockeian, Madisonian, protectionism, trade politics