1. Constitution, Society, and Leadership Week 10 Unit 8 The Constitution in the Future: State, Nation, World Christopher Dreisbach, Ph.D. Johns Hopkins University

2.  Unit topic: the Constitution from state to world  Four selections 1. J. Resnik, What’s federalism for? 2. V. Jackson, Progressive constitutionalism and transnational legal discourse 3. D. Cole, “Strategies of the weak”: Thinking globally and acting locally toward a progressive constitutional vision 4. H. Koh, America and the world, 2020 2

3.  Point: In spite of commitment to federalism, the U. S. needs to be more aware of its “translocal organizations of government actors”  =TOGA’s  The interdependence of local, state, and national government 3

4.  Translocal changes in increasing globalization ▪ New institutional infrastructure ▪ Current awareness of ▪ Special interest groups (SIGs) ▪ Public interest groups (PIGs) ▪ NGOs ▪ Insufficient awareness of TOGAs 4

5.  “The Freight of Federalism”  Painful U.S. history—e.g., slavery  Increased national power and backlash from states  “Federalism continues to be used to constrain various equality claims” 5

6.  Federalism Revisited  States’ rights folks seem to be winning  With narrowing of federal rights comes pre- emption of personal rights  Progressives need to reassess the view that “national leadership alone has produced the rereading of the Constitution to embrace rights- holding by women and people of color.” 6

7.  Translocal Transnationalism  Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) ▪ Ratified by 185 countries  But not U.S.A ▪ And some local U.S. jurisdictions  Kyoto protocol (re: global warming) ▪ U.S. did not ratify ▪ But some local U.S. jurisdictions did  Transjurisdictional organization of government ▪ E.g., U. S. Conference of Mayors 7

8.  Legality of Local Transnationalism  E.g., Sudan Accountability and Divestment Act (2007) ▪ Allows individual states to withdraw investments from Sudan ▪ In spite of “Foreign Affairs” assumption  Need to balance federalism with transnational localism 8

9.  Point: “Foreign and international comparisons should be welcomed as a way of  Deepening understanding of our own Constitution  Checking those impulses and traditions which, on reflection, in the reasoned law of comparable countries, do not merit inclusion in the U.S.” 9

10.  Controversy over Supreme Court’s reference to foreign law or international law  These references are not new  A well informed judge needs to consider them  Progressives should support this because knowing more is better than knowing less 10

11.  Scalia’s resistance  Irrelevant to originalism ▪ Response: But long history of such references  Undemocratic ▪ Response: Nonbinding!  Expands range of judicial discretion illegitimately ▪ Response: “Judicial decision making is multivectored” 11

12.  “Appropriate model for U. S. consideration of foreign law”  Not resistance  Not Convergence  But engagement 12

13.  Progressives should support appropriate references to foreign law for three reasons:  Better to know more than to know less  Originalism is less useful for constitutional development than knowledge about foreign law  Need to promote judiciary's “adjudicatory independence” 13

14.  Point: Progressives should endorse a “strategy of the weak”  Vs. Bush’s strategy of the strong ▪ Set aside constitutional concerns ▪ Strategy of the weak is akin to terrorism  Use “not just constitutional law ▪ But international forms of judicial process and institutional politics” 14

15.  Three present realities that progressives must take into account 1. Struggles against terrorism will probably continue 2. “Progressives will face a hostile majority in the Supreme Court for the foreseeable future” 3. “the world is changing in ways that may be used to…advantage” 15

16.  Shift from federal to transnational regulations and human rights revolutions  Normative and strategic implications ▪ Constitutional challenges of government security measures ▪ Treatment of foreign nationals ▪ Need to bridge “gulf between contemporary reality and constitutional vision” ▪ Use each branch to progressive’s advantage 16

17.  OK to use “concepts of international human rights as a way of buttressing and extending constitutional rights at home”  Summary: need to take into account  “Continuous threats of terrorism  “Likelihood that [no] political branch will be especially progressive on constitutional issues”  Growing globalization and diminished national sovereignty 17

18.  Point: What world and U.S. will look like in 2020  Five issues that will probably shape constitutional law framework governing America’s relationship with the world in 2020 1. Curtiss-Wright v. Youngstown view of presidential powers: Sweeping v. limited Curtiss-Wright Youngstown 2. Judicial nominations 3. “Canons governing interjudicial comity and the incorporation of international law and foreign law into national law”comity 4. “Extraterritorial application of the U. S. Constitution and law” 5. “Issues surrounding membership in our national community” 18

19.  “A World turned upside down  U. S. Foreign Policy just before 9/11 ▪ Diplomacy backed by force ▪ Promotion of universal human rights ▪ Building democracy from the ground up ▪ “Strategic multi-lateralism and tactical unilateralism”  U. S. National Security policy just before 9/11 ▪ Shared power at federal level ▪ No law-free zones ▪ No infringement on civil liberties ▪ Treat aliens and citizens the same 19

20.  After 9/11 Bush inverted all elements of both policies ▪ But Supreme Court stymied his efforts  Looming Constitutional Battlegrounds  Transnationalism v. Nationalism ▪ Interdependence of nations v. U. S. autonomy ▪ Transnational law v. domestic/foreign dichotomy ▪ Courts incorporate international law v. congress does this ▪ U. S. courts help develop global legal systems v. focus on U.S. legal system ▪ Restrained executive power v. unrestrained 20

21.  Three constitutional battlegrounds will help define U. S.-world relations until 2020  Judicial nominations  Judicial management of U.S.-international tribunal relationships  Curtiss-Wright v. Youngstown view of executive power  Plus two more questions  “How far do U. S. laws extend?”  “How far do our human rights and constitutional obligations extend?” 21

22. Week 10 Unit 8 The Constitution in the Future: State, Nation, World 22