A Defense of Sovereignty - Jeremy Rabkin on some pressing questions

By Ying Ma, National Review Online, March 10, 2005

http://www.thedustininmansociety.com/blog/?p=174http://www.nationalreview.com/comment/rabkin200503100742.asp

From the war in Iraq to the controversy over the International Criminal Court, the concept of sovereignty lies at the heart of the debate on whether the United States can act without the consent of international organizations. In The Case for Sovereignty, Cornell government-professor Jeremy Rabkin argues that sovereignty undergirds America's right to protect itself and to behave differently, even when other countries disagree.

Rabkin recently answered some questions about his new book from Stanford Law student Ying Ma.

National Review Online: What is sovereignty?

Jeremy Rabkin: Only a few decades ago, writers on international law used sovereignty as a synonym for independence. That's still a good place to start. International law is binding on the United States only to the extent that it is endorsed and enforced, within the United States, by our own government. Our own law has priority. That's why we are still sovereign.

NRO: How did the Founding Fathers view sovereignty?

Rabkin: The Constitution makes federal law (and the federal Constitution) "supreme law of the land." States don't even have the last word on their own constitutions (or when they can adhere to their own constitutions). All of the Founders would have been appalled at the thought that the federal government, in turn, would be subordinate to some supranational or international entity, which could claim priority in this way over the American Constitution and American laws.

NRO: Is the sovereignty advocated by the Founders eroding in America?

Rabkin: Perhaps "eroding" is too strong a term. But we are not as alert to dangers as we once were. For example, the Supreme Court has recently invoked foreign legal decisions as a guide to interpreting the U.S. Constitution on the apparent assumption that our own constitution ought to be consistent with what the Court has called the opinions of "the world community." The premise is that the world is evolving toward consensus and the United States must be part of that. The purpose of sovereignty is to safeguard our right to be different because we have no good reason to think others know better than Americans how our nation should be governed or that Americans will be more attached to world law than our own law.

What concerns me is the general idea that America is offending other nations by holding to its own constitutional scheme. We shouldn't be apologetic about that. We have good moral claims to hold to our own traditional governing scheme. Sovereignty may be out of fashion in Europe but it still has lots of appeal to most countries in most other parts of the world.

NRO: What are the key differences between how the United States and certain European countries, like France and Germany, view sovereignty?

Rabkin: All members of the EU have now bound themselves to a scheme in which the European Court of Justice treats mere treaties as superior to national constitutions and national courts give priority to the rulings of this European Court, even against their own parliaments and their own national constitutions. This is way, way, way, beyond anything we could accept in America. To find an analogy, you must imagine that NAFTA officials in Montreal claim the authority to override the U.S. Congress and the U.S. Supreme Court and federal judges in America agree that the NAFTA policy must take priority....

In the long run, the American scheme is bound to be more respectful of individual rights and personal liberty, because we start from the recognition that people can disagree whereas the EU is always presuming some consensus that will supposedly be discovered by bureaucrats and judges. In the long run, the American scheme is bound to be more alert to security threats...

NRO: In your book, you call for the United States to consider withdrawing from the U.N. altogether. The Bush administration, however, has insisted that the United States is not out to destroy the U.N. but merely wants to make it more effective. Do you think the administration's stance is unwise?

Rabkin: The point of my book was to emphasize the difference between a sovereign state and an international organization. The U.N. is merely an international organization. At its best, the U.N. is simply a forum for negotiations. But negotiations don't always succeed. When the U.N is paralyzed as it usually is we need to think about alternate forums or specialized coalitions to pursue our aims. That's what we did throughout the Cold War. That's what we did in Iraq in 2003. That's what we'll have to do in the future.

I don't think it is contradictory for the U.S. to demand, on the one hand, that the U.N. address serious challenges, while warning, on the other hand, that we may ultimately leave the organization, if it does not. The main reason to talk about leaving the U.N., however, is to remind ourselves what we are seeking at the U.N. not a world government, but simply a tool for our diplomacy....

NRO: What should American policymakers remember about sovereignty as they undertake the potentially unpopular exercise of defending it?

Rabkin: The reason to talk about sovereignty is not to establish a simple formula that dictates the correct foreign policy in every situation. It is rather to remind ourselves that we do have to make serious choices, because international law can't settle very much for us....

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