Tuesday, May 17, 2005

Notes on democratic sovereignty, post 2/3

(Second of three posts on the nature of democratic sovereignty.)

9. The defense of democratic sovereignty as a matter of political and constitutional theory as against liberal internationalism has been given with blistering brilliance by Jed Rubenfeld, and I will not recite his arguments here, except to say that I firmly agree with them. (For those familiar with Professor Rubenfeld’s earlier work on constitutionalism and time, the past and present binding the future in the work of such writers as Jefferson, I increasingly understand his views on democratic sovereignty to be deeply linked to this matter of time and constitutional theory. And I eagerly await Professor Rubenfeld’s next book on this subject.)

10. I emphasize, however, that Professor Rubenfeld’s position is a “meta” one – it does not imply a particular policy position with respect to the ends of American unilateralism, the goodness or badness of the war in Iraq, or the final result of any other policy question. On the contrary, it is, as I understand it, a meta-position about the “internal” nature of democratic legitimacy that is consistent with either a strongly unilateralist approach to world affairs or a robustly multilateralist approach. What it does demand is fidelity to a certain vision of constitutional democracy as conceived by a particular political community, faithful to the internal vision of that democratic community, fidelity to democratic means, and a commitment to the sovereign power necessary to make it real and to protect it from outside intervention – again, ‘a political community, without a political superior’.

11. In thinking about democratic sovereignty in these ways, we tend to think about war, peace, security issues. But the principles of democratic sovereignty apply with equal force to economic issues – attempts to circumvent domestic democratic processes in such matters as free trade treaties are fully as suspect for the principled democratic sovereigntist – the democratic sovereigntist for whom democracy and not merely a set of (usually conservative) policy outcomes is the point - as issues of war and security.

I am, for example, on policy grounds as devoted a Ricardian free trader as they come; nevertheless, on still more important grounds of democratic sovereignty, I find attempts to go around the normal constitutionally provided mechanisms for passing legislation – both legislative houses and a presidential signature – through such vehicles as “fast track” to be extremely troubling and frankly illegitimate even if they have been approved by courts. I understand fully the policy difficulties in getting complicated trade legislation through the usual process – however, that’s why we have a process.

In the same vein, I think an important question is the limit of the treaty power – what are the US constitutional limits on what can be done through a treaty that has the approval of only the Senate? We have various long-standing doctrines about self-executing and non-self-executing treaties and agreements, but I believe that these doctrines will come under great pressure from different sides, pressing to limit what can be done by treaty without further legislation and what cannot be done.

My broader point is that it is not a principled democratic sovereigntist approach to say, well, trade is really special for economic efficiency (or even alternatively, well, trade is just trade, it’s very minor and not very important the way security is), therefore we have to set aside our democratic procedures to accommodate globalization, whereas security issues are a different question. Democratic sovereignty is not in principle a conservative or liberal position. It is, rather, a question of whether a political community looks inward to itself or outwards to something else to validate its political legitimacy.

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