NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive. Today’s episode features Professor Jeremy Rabkin, who is a Professor of Law at the Antonin Scalia Law School, George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - PUBLIUS: Let’s start with a very basic question. What is sovereignty? JEREMY RABKIN: Now many people think that it's like, oh, if you say sovereignty, then you're saying, "I can do whatever I want, so I'm in a lawless zone." This is backwards. This is like saying, "I have property and so I'm in a lawless zone." No, if you're actually claiming it as property, you want there to be law to acknowledge and recognize your property. It wouldn't be useful to you to just go out into the middle of a park and say, "It is mine and I claim it. I will defend it against all comers." You'd be spending all your time defending it. You want there to be a system, which acknowledges, "Yes, this is what property is, this is how you register it. This is how you prove that it's yours." And then you know in advance, here are the rights that follow. And we would like that with our independence. And if you go back and look at the Declaration of Independence, it ends not just with "We're independent, so shove it." It ends with "We have full power to levy war, conclude peace, contract alliances, establish commerce and do all other things, which independent states may of right do." We say, "We want to be part of this preexisting system and have the American franchise in this system." We want to be like other existing states, which get to do these things under the law of nations and it's very clear they are acknowledging, "Oh yeah, there is a law of nations, which protects the rights of sovereign states to do various things and we want to be part of that." And this is not just Thomas Jefferson was whimsical. The main international law text in the 18th century, it had first appeared about 20 years before the American revolution. Vattel's Droit des Gens. The Law of Nations. And that was the big book on the subject in the 18th century. We know that George Washington had a copy and made notes in the margin. We know that Jefferson had a copy. We know that Benjamin Franklin suggested that the Dutch publisher that was coming out with a second edition send extra editions. I mean they were paying attention to this. They were very interested in this, which makes perfect sense. If you're small and weak and struggling, you want to say, "No, wait. We're like the others." It's like when you are, let's say two law students, it's if you want professional independence, that doesn't mean that you don't want there to be admission to the bar. It means you do want admission to the bar, because you want to be recognized and acknowledged as, "Oh yes, I'm in this category." There isn't a world government. And there isn't a world constitution. And so to the extent that there is international law that functions, it is more or less basic stuff that can be consensual, that almost everyone can agree to. And this is one of the practical things that almost everyone agrees to in almost every case. You're not really a state really, unless other states recognize you as such. PUBLIUS: You mentioned the Declaration of Independence. Didn’t we simply declare ourselves to be a sovereign state on our own authority? What does it mean to be an independent “state”? JEREMY RABKIN: There are theories about this and one theory, which I believe was our theory in 1776, we have declared ourselves to be independent, therefore we are. Well that was a good theory except it wouldn't have amounted to much unless we had some other states say, "Yes, you are independent, we recognize you. And by the way, here's some guns and we will send a Navy and troops and then we'll make good on your claim." The constitution itself at the very end says, "Done this day in Philadelphia, the year 1776. The Independence of the United States of the 12th." So it is dating American independence to the Declaration of Independence. So that is saying, "As soon as we declared it, then it was so. Because we have the authority to declare it, so it is so." And it's a theory, but it is not an adequate theory. I mean I think that's telling you something really important about the world. You need to have some reality check from others of the like kind who say, "Yes, you are part of the community of states." There are a few examples around the world of countries saying we are independent and the rest of the world is, "Umm. Yes, well." I just read about this. I hadn't heard about it before. I think it is on the Italian Riviera. There's some town, which claims to be independent. And that's charming and amusing. There is an anti-aircraft platform in the English Channel, which claims to be an independent nation, Sealand. Anyone can look this up on Wikipedia. It's a lot of fun. It has 12 people living there at any one time. It claims to be a constitutional monarchy. Has a flag, it has a song. What is to prevent the world from disintegrating into 40,000 statelets, each of which claimed to be independent? And the answer is the consent of the other states. You might think it would follow from that, that we'd be constantly fighting over this. And the really interesting thing is how very few the number of candidates are for statehood that are disputed. There's Taiwan, there's Palestine, there's one or two others. But there's less, it's in single digits and that's because most countries most of the time don't want to fight about this. There's the Turkish Republic of Northern Cyprus, which is recognized by Turkey and no one else. Well, I'm sorry, if you're not recognized by anyone else then I think you're missing something important. You need to be big enough, you need to be in control of your territory, you need to have a government that's actually functioning. PUBLIUS: If recognition by the international community is important, does that necessitate an international law system? What issues are properly addressed by international law versus a nation’s own legal code? What definition of international law do you present to your students? JEREMY RABKIN: The first day of class I make them analyze the difference between definitions that appeared in case books 50 years ago and definitions that are in either modern case books or modern sources, like the Restatement of Foreign Relations Law, the third. So the classical definition was, "It's about the rights and duties of states in their mutual relations. It's about state to state conduct." And it's about, the classical definition is actually specified civilized states and their mutual interactions. And the modern definitions will mention that, but then also mention of, they will make a point of saying, "And some persons, legal or natural, in other settings." So they'll want to bring in human rights law. But what we now mean by human rights law is an obligation that a state has to its own citizens. We used to call that a constitution. If you call that international law, you have vastly broadened the subject. And as often happens when you've broadened a subject, you've also in a way thinned it out because people don't actually really believe that, really, that is an obligation owed to another country. So if it's not owed to another country, what is it really? And the answer is, I think it's like mood music. I don't say that in a completely dismissive way. I mean it makes a difference to the atmosphere. It can make a difference sometimes to the atmosphere of diplomacy, but I think it is not law in the same sense as, an ambassador cannot be arrested by the host country. Which is a very old rule, which is almost never violated because everyone understands that's a rule. It's the general rule, and it has hardly any exceptions, is each sovereign state controls what goes on in its own territory. To a very much lesser extent, to a very small extent, it can follow its own nationals out into the world for certain limited purposes. So if you talk about things like the Internet and mass communications, some people have clever lawyer arguments, but I think the compelling legal texts do not really guarantee a right for people to hear foreign broadcasts. And if Cuba wants to, as it does, block foreign broadcasts from reaching its citizens, it is within its sovereign rights to do so. We are within our sovereign rights to try and get around it, which we do. And there it is. I mean, they control what happens in Cuba. We control what happens in America. What happens in America is we broadcast to the world. If you don't want to listen, that's okay. If your government wants to interfere, that's deplorable. But we can't say it's unlawful. This is true of the Internet. China has put up what's called the Great Wall of China to make, to block their citizens from access to the Internet. We consider that deplorable. It is not against international law, because they are in control in China. And who's in charge in that country and who's in charge in this country are really decisive, not just politically but legally. You can cite something in say the human rights convention or something, but really our practice, I mean our legal practice is every country determines the law within its own territory. And if they are acting in a way that is contrary to the law in their own territory, the human rights conventions are a talking point. There is no appeal to the International Court of Justice. I mean, not for an individual person and even for a state, it has to be by the consent of both parties. So there is not an international law that actually protects individuals operating within a country except in very, very specialized circumstances. And for better or worse, this isn't one of them. PUBLIUS: So what sort of authority do international entities have? Do we surrender some of our own sovereignty by joining something like the United Nations? What about the European Union which actually passes binding resolutions and legislation for its member countries? JEREMY RABKIN: I say with total confidence, we could not participate in the European Union. We could not participate in a North American Union that was a counterpart to it. So just to take just two or three examples. What happens in the European Union is most legislation is made by this council of ministers, which would be the equivalent of let's say the treasury secretaries of the member states. And they just agree on a new directive and that becomes binding law. So binding law, which takes direct effect in the national legal systems is made by...For us it would be like the secretary of treasury sits down with a finance minister of Canada and the finance minister of Mexico, and they agree that this and this and this should be the rule and then that suddenly becomes our rule. Nevermind the House and the Senate and the presidential signing. I think nobody would accept that oh yes, Congress can do a legislative delegation on that scale. They can just say, "Oh yeah, we're tired of making laws. You make this law, and you're not even accountable to us for confirmation or budgeting." Right. So we couldn't do that. And similarly, there are in effect appeals from the highest courts in the member states of the EU to the European Court of Justice and the European Court of Justice tells them, "No, the treaty that you're committed to means this. Fix your decision. This is what it is." I don't think people accept that our Supreme court could be subordinated to a Supreme Court of the Americas. So I think that that is an extra constitutional project. If you ask me, "Can we sit in the UN?" Sure. It's hardly does any harm at all. I mean, it's mostly a debating society. If the security council tried to impose an elaborate scheme of domestic regulation and called it a resolution of the security council, I don't think it would be adequate to say, "Well, the president supported it because his emissary, the UN ambassador voted for it." I think that would present constitutional difficulties. So we would have a lot of problems even with the UN if it were more, let's say active governing body. The UN does not actually constrain us very much or obligate us very much. It's mostly a forum. But again, if you think of it as the nucleus of world government, then of course it is not compatible with our constitution. I think there is a challenge to us in, just to take one example, the EU claims to have its own foreign and security policy. In other circumstances I think it's fine. Whatever they want to do with trade, I think it is a little bit awkward if they say that they are a single entity for foreign policy. And by the way, I mean I'm not saying this because, "Ooh, there'd be a challenge to us." Which is what Europeans think. I think it would probably be good if there were a European Navy. I mean if there were a European air force, if there were a European army, that would actually be helpful. We could actually have a partner that could actually do things. But this is the worst of both worlds, which is of course they don't have a Navy. They don't have any of that. It's too expensive, is the main thing. They just don't want to pay for it. But in the meantime they want to do the thing that's cheap and easy, which is go to the international criminal court and harrumph and go to the UN and harrumph. So they have this structural bias towards let's say rhetorical powers. And so they're not actually a partner. They are a perpetual critic because they're constantly out there saying, "Well bah, what about international law?" They are almost necessarily committed to exaggerating the scope and content and reliability of international law. Because that's the one thing they can do with their legal power in the world. And that's actually not a good thing in lawyering power in the world, not a good thing. PUBLIUS: So what happens if international law contradicts something in our Constitution? Does the Constitution still have ultimate authority? JEREMY RABKIN: When Woodrow Wilson tried to bring us into the League of Nations and the Senate Foreign Relations Committee said, "No way. We have some objections and concerns. We have these reservations." If you go back and look at them, most of them were, "Wait, you cannot just vote for this at the League of Nations and then it's binding. No." If you're going to change our immigration policy that requires the Congress, if you're going to change our trade policy, that requires the Congress. You're going to declare war, that requires the Congress. They were very jealous of preserving the role of Congress in making law for the United states. And I think that's fair. I think that's reasonable to this day. The reason why I'm so casual about the UN is it hardly ever does anything which directly imposes legal obligations on Americans. But if it did, I would be very quick to say, "we should leave the UN or reform it or do something." We cannot allow foreign bodies to make law for Americans. We have a very elaborate structure of checks and balances and accountability and a lot of experience working together and a lot of shared, not as many as we used to, but still some shared history that makes us feel like, "Okay, we have to save our country." And you will not replace that with some international body, which has a lot of diplomats saying, "Don't worry about it, it's international law." I am worried about it. I will not be reassured by that. I prefer the constitutional structure and the history of nationhood. The constitution remains supreme. And an act of Congress will be supreme. So whatever is claimed for international law, if the Congress says "No." It's no. And if the constitution says, "No." It's no. So that's good. Where this gets a little not so good is people say, and the first person to say this was John Marshall. So it has a lot of momentum behind it. "Well of course, if the Congress really said "No.". N. O. No. Really, okay. Well then it would be no." But if they were, it was not so clear exactly what they were saying. Shouldn't we interpret the statute to avoid a conflict with international law? Shouldn't we steer around it? And that was a very sensible doctrine in the early 19th century when John Marshall pronounced it, because he was thinking about international law as a very much more limited body of rules to keep states from interfering with each other. If you think international law is anything associated with the UN, anything associated with human rights, anything in an environmental treaty or an environmental conference in which they pass the resolutions and then whoa, whoa, whoa, whoa, then you're going to have a tremendous distorting effect on American law. If you say, "We have to steer around every one of those things." So far the Roberts court has been rather emphatic in distinguishing treaties that have a direct effect in American law and those which are just out there in international law, which American courts don't have to acknowledge. That could change. There are many law professors saying, "Oh no, that's really, that's old fashioned. That's paranoid. We have to engage with the world." Okay, so if we have a different Supreme Court that could be softened a lot and that would be disturbing, I think. And so also with the constitutional guarantee. Well the constitution will always be supreme. But there are people saying, "Oh yeah, but we should interpret the constitution to make it accommodating to international law. Let's try to avoid a conflict." So it will not actually be The Constitution. It will be the constitution as softened and squeezed and stretched to accommodate international law. I don't think this can be resolved for all time by a single Supreme Court decision. I think this is another thing that is really about mood. I hope that people can hold on to the idea that it is respectable for Americans, all Americans to want to have a common constitution that is ours. And not feel that we must be constantly bargaining with foreigners about what we are allowed to say in our constitution and what we are allowed to hold to. I think that is a very valuable and important thing. But again, I don't think this can be settled for all time. It will depend on what the outlook of the next, in the immediate term, the next generation of judges, but also of citizens. And you do have an example of the European Union. It's amazing how complacent they are about having their constitutions just completely rewritten by foreigners, which is what the European Union is. It's this thing that's super imposed on the national constitutions and the national constitutions no longer describe how they are governed. Oh I do not think that we are in danger of having two thirds of the Senate endorse a treaty that establishes this. That we are not in danger of, really. That would take a long time, but I think we might well be in danger of having a different set of judicial appointees saying, "Well why can't we accommodate this a little?" Yeah, I mean this meaning international human rights standards. So we've already had four or five cases on the meaning of the eighth amendment guarantee against cruel and unusual punishment. And a majority of Supreme court Justices signing on to opinions, which say, "The international community disapproves this thing that some states are doing, executing people who are 17. International community is against it." Really? What? Why is that a subject for the international community? Why are you bringing that up? And they didn't quite say, in any of these cases, "It's international law, so reluctantly we have to rewrite the constitution." They don't quite say that. They purport to be interpreting the constitution, not overruling it. But they are very explicitly saying, "The constitution maybe should be read differently because otherwise it would put us at odds with what all these international human rights treaties say." Okay. So there, I think it's not a big leap to see more of that. I hope that we do not, but I think that could very well happen and I think that is a thing that people should try to guard against because it's corrosive, I think. PUBLIUS: Many issues are now considered to be global concerns, like global warming or regulating the internet. Does that mean that international law should take precedence? Is our Constitution too outdated to deal with these very modern issues? JEREMY RABKIN: The most basic thing is, the constitution is very hard to amend. And it makes it very hard to ratify a treaty. And if you say, "Well, let's fix that difficulty of two thirds of the Senate, that's such a high barrier, we'll amend the constitution." No we won't. It's really hard to amend the constitution. I see that those are both problems and they have both led to work arounds, which are often objectionable and contrary to the spirit of the constitution. But a lot of people say, "Oh, well we just have to, because we have this 18th century constitution." And I'll just say something banal, but it's anyway true. It's a very great strength to have a constitution that is more than 200 years old. That is a very, very great asset to America and if you make it really easy to change or really easy to work around, you are losing the benefit of that asset. Most countries have the opposite problem, which is they say, "Oh, it's the constitution. You don't have to worry.". . . We have our own constitution and it's ours. That is a really valuable thing and we shouldn't be thinking of chucking that or cutting it down just because it's a little bit more complicated to regulate the Internet. It was always complicated, really. I mean it, whatever thing you've thought of today, there was something in the 18th century. I think the biggest difference between today and the 18th century. It's not the technology per se, it's that we have so much easier, more comfortable lives. We have almost anything we want. We don't even have to call up to get it delivered. We just go online and then someone comes and delivers it. And so that makes us very impatient. And one of the advantages, in a way, of people who lived a hundred years ago or 200 years ago was they just knew that life confronts you with a lot of sad and difficult things and you have to have patience and strength and fortitude, and we don't have as much of that. But no constitutional change is going to supply that and we should just remind ourselves, "No, wait. There's some disadvantages, disappointments, awkwardness, which is to be a residue of life because it's life." And so we should not be saying, "Hey, let's just throw away the constitution. It isn't perfect." It's not going to be perfect. Nothing is going to be perfect. And people had a better grip on that 200 years ago, but it's still available to us if we use a little imagination. We could still remind ourselves that sometimes there's a downside that's in the package with the stuff that we really treasure. And it doesn't mean we can just cut it out because you usually kill things if you cut them too deeply. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the power of the Executive. Today’s episode features Professor Jeremy Rabkin, who is a Professor of Law at the Antonin Scalia Law School, George Mason University. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - Let’s start with a very basic question. What is sovereignty? Now many people think that it's like, oh, if you say sovereignty, then you're saying, "I can do whatever I want, so I'm in a lawless zone." This is backwards. This is like saying, "I have property and so I'm in a lawless zone." No, if you're actually claiming it as property, you want there to be law to acknowledge and recognize your property. It wouldn't be useful to you to just go out into the middle of a park and say, "It is mine and I claim it. I will defend it against all comers." You'd be spending all your time defending it. You want there to be a system, which acknowledges, "Yes, this is what property is, this is how you register it. This is how you prove that it's yours." And then you know in advance, here are the rights that follow. And we would like that with our independence. And if you go back and look at the Declaration of Independence, it ends not just with "We're independent, so shove it." It ends with "We have full power to levy war, conclude peace, contract alliances, establish commerce and do all other things, which independent states may of right do." We say, "We want to be part of this preexisting system and have the American franchise in this system." We want to be like other existing states, which get to do these things under the law of nations and it's very clear they are acknowledging, "Oh yeah, there is a law of nations, which protects the rights of sovereign states to do various things and we want to be part of that." And this is not just Thomas Jefferson was whimsical. The main international law text in the 18th century, it had first appeared about 20 years before the American revolution. Vattel's Droit des Gens. The Law of Nations. And that was the big book on the subject in the 18th century. We know that George Washington had a copy and made notes in the margin. We know that Jefferson had a copy. We know that Benjamin Franklin suggested that the Dutch publisher that was coming out with a second edition send extra editions. I mean they were paying attention to this. They were very interested in this, which makes perfect sense. If you're small and weak and struggling, you want to say, "No, wait. We're like the others." It's like when you are, let's say two law students, it's if you want professional independence, that doesn't mean that you don't want there to be admission to the bar. It means you do want admission to the bar, because you want to be recognized and acknowledged as, "Oh yes, I'm in this category." There isn't a world government. And there isn't a world constitution. And so to the extent that there is international law that functions, it is more or less basic stuff that can be consensual, that almost everyone can agree to. And this is one of the practical things that almost everyone agrees to in almost every case. You're not really a state really, unless other states recognize you as such. You mentioned the Declaration of Independence. Didn’t we simply declare ourselves to be a sovereign state on our own authority? What does it mean to be an independent “state”? There are theories about this and one theory, which I believe was our theory in 1776, we have declared ourselves to be independent, therefore we are. Well that was a good theory except it wouldn't have amounted to much unless we had some other states say, "Yes, you are independent, we recognize you. And by the way, here's some guns and we will send a Navy and troops and then we'll make good on your claim." The constitution itself at the very end says, "Done this day in Philadelphia, the year 1776. The Independence of the United States of the 12th." So it is dating American independence to the Declaration of Independence. So that is saying, "As soon as we declared it, then it was so. Because we have the authority to declare it, so it is so." And it's a theory, but it is not an adequate theory. I mean I think that's telling you something really important about the world. You need to have some reality check from others of the like kind who say, "Yes, you are part of the community of states." There are a few examples around the world of countries saying we are independent and the rest of the world is, "Umm. Yes, well." I just read about this. I hadn't heard about it before. I think it is on the Italian Riviera. There's some town, which claims to be independent. And that's charming and amusing. There is an anti-aircraft platform in the English Channel, which claims to be an independent nation, Sealand. Anyone can look this up on Wikipedia. It's a lot of fun. It has 12 people living there at any one time. It claims to be a constitutional monarchy. Has a flag, it has a song. What is to prevent the world from disintegrating into 40,000 statelets, each of which claimed to be independent? And the answer is the consent of the other states. You might think it would follow from that, that we'd be constantly fighting over this. And the really interesting thing is how very few the number of candidates are for statehood that are disputed. There's Taiwan, there's Palestine, there's one or two others. But there's less, it's in single digits and that's because most countries most of the time don't want to fight about this. There's the Turkish Republic of Northern Cyprus, which is recognized by Turkey and no one else. Well, I'm sorry, if you're not recognized by anyone else then I think you're missing something important. You need to be big enough, you need to be in control of your territory, you need to have a government that's actually functioning. If recognition by the international community is important, does that necessitate an international law system? What issues are properly addressed by international law versus a nation’s own legal code? What definition of international law do you present to your students? The first day of class I make them analyze the difference between definitions that appeared in case books 50 years ago and definitions that are in either modern case books or modern sources, like the Restatement of Foreign Relations Law, the third. So the classical definition was, "It's about the rights and duties of states in their mutual relations. It's about state to state conduct." And it's about, the classical definition is actually specified civilized states and their mutual interactions. And the modern definitions will mention that, but then also mention of, they will make a point of saying, "And some persons, legal or natural, in other settings." So they'll want to bring in human rights law. But what we now mean by human rights law is an obligation that a state has to its own citizens. We used to call that a constitution. If you call that international law, you have vastly broadened the subject. And as often happens when you've broadened a subject, you've also in a way thinned it out because people don't actually really believe that, really, that is an obligation owed to another country. So if it's not owed to another country, what is it really? And the answer is, I think it's like mood music. I don't say that in a completely dismissive way. I mean it makes a difference to the atmosphere. It can make a difference sometimes to the atmosphere of diplomacy, but I think it is not law in the same sense as, an ambassador cannot be arrested by the host country. Which is a very old rule, which is almost never violated because everyone understands that's a rule. It's the general rule, and it has hardly any exceptions, is each sovereign state controls what goes on in its own territory. To a very much lesser extent, to a very small extent, it can follow its own nationals out into the world for certain limited purposes. So if you talk about things like the Internet and mass communications, some people have clever lawyer arguments, but I think the compelling legal texts do not really guarantee a right for people to hear foreign broadcasts. And if Cuba wants to, as it does, block foreign broadcasts from reaching its citizens, it is within its sovereign rights to do so. We are within our sovereign rights to try and get around it, which we do. And there it is. I mean, they control what happens in Cuba. We control what happens in America. What happens in America is we broadcast to the world. If you don't want to listen, that's okay. If your government wants to interfere, that's deplorable. But we can't say it's unlawful. This is true of the Internet. China has put up what's called the Great Wall of China to make, to block their citizens from access to the Internet. We consider that deplorable. It is not against international law, because they are in control in China. And who's in charge in that country and who's in charge in this country are really decisive, not just politically but legally. You can cite something in say the human rights convention or something, but really our practice, I mean our legal practice is every country determines the law within its own territory. And if they are acting in a way that is contrary to the law in their own territory, the human rights conventions are a talking point. There is no appeal to the International Court of Justice. I mean, not for an individual person and even for a state, it has to be by the consent of both parties. So there is not an international law that actually protects individuals operating within a country except in very, very specialized circumstances. And for better or worse, this isn't one of them. So what sort of authority do international entities have? Do we surrender some of our own sovereignty by joining something like the United Nations? What about the European Union which actually passes binding resolutions and legislation for its member countries? I say with total confidence, we could not participate in the European Union. We could not participate in a North American Union that was a counterpart to it. So just to take just two or three examples. What happens in the European Union is most legislation is made by this council of ministers, which would be the equivalent of let's say the treasury secretaries of the member states. And they just agree on a new directive and that becomes binding law. So binding law, which takes direct effect in the national legal systems is made by...For us it would be like the secretary of treasury sits down with a finance minister of Canada and the finance minister of Mexico, and they agree that this and this and this should be the rule and then that suddenly becomes our rule. Nevermind the House and the Senate and the presidential signing. I think nobody would accept that oh yes, Congress can do a legislative delegation on that scale. They can just say, "Oh yeah, we're tired of making laws. You make this law, and you're not even accountable to us for confirmation or budgeting." Right. So we couldn't do that. And similarly, there are in effect appeals from the highest courts in the member states of the EU to the European Court of Justice and the European Court of Justice tells them, "No, the treaty that you're committed to means this. Fix your decision. This is what it is." I don't think people accept that our Supreme court could be subordinated to a Supreme Court of the Americas. So I think that that is an extra constitutional project. If you ask me, "Can we sit in the UN?" Sure. It's hardly does any harm at all. I mean, it's mostly a debating society. If the security council tried to impose an elaborate scheme of domestic regulation and called it a resolution of the security council, I don't think it would be adequate to say, "Well, the president supported it because his emissary, the UN ambassador voted for it." I think that would present constitutional difficulties. So we would have a lot of problems even with the UN if it were more, let's say active governing body. The UN does not actually constrain us very much or obligate us very much. It's mostly a forum. But again, if you think of it as the nucleus of world government, then of course it is not compatible with our constitution. I think there is a challenge to us in, just to take one example, the EU claims to have its own foreign and security policy. In other circumstances I think it's fine. Whatever they want to do with trade, I think it is a little bit awkward if they say that they are a single entity for foreign policy. And by the way, I mean I'm not saying this because, "Ooh, there'd be a challenge to us." Which is what Europeans think. I think it would probably be good if there were a European Navy. I mean if there were a European air force, if there were a European army, that would actually be helpful. We could actually have a partner that could actually do things. But this is the worst of both worlds, which is of course they don't have a Navy. They don't have any of that. It's too expensive, is the main thing. They just don't want to pay for it. But in the meantime they want to do the thing that's cheap and easy, which is go to the international criminal court and harrumph and go to the UN and harrumph. So they have this structural bias towards let's say rhetorical powers. And so they're not actually a partner. They are a perpetual critic because they're constantly out there saying, "Well bah, what about international law?" They are almost necessarily committed to exaggerating the scope and content and reliability of international law. Because that's the one thing they can do with their legal power in the world. And that's actually not a good thing in lawyering power in the world, not a good thing. So what happens if international law contradicts something in our Constitution? Does the Constitution still have ultimate authority? When Woodrow Wilson tried to bring us into the League of Nations and the Senate Foreign Relations Committee said, "No way. We have some objections and concerns. We have these reservations." If you go back and look at them, most of them were, "Wait, you cannot just vote for this at the League of Nations and then it's binding. No." If you're going to change our immigration policy that requires the Congress, if you're going to change our trade policy, that requires the Congress. You're going to declare war, that requires the Congress. They were very jealous of preserving the role of Congress in making law for the United states. And I think that's fair. I think that's reasonable to this day. The reason why I'm so casual about the UN is it hardly ever does anything which directly imposes legal obligations on Americans. But if it did, I would be very quick to say, "we should leave the UN or reform it or do something." We cannot allow foreign bodies to make law for Americans. We have a very elaborate structure of checks and balances and accountability and a lot of experience working together and a lot of shared, not as many as we used to, but still some shared history that makes us feel like, "Okay, we have to save our country." And you will not replace that with some international body, which has a lot of diplomats saying, "Don't worry about it, it's international law." I am worried about it. I will not be reassured by that. I prefer the constitutional structure and the history of nationhood. The constitution remains supreme. And an act of Congress will be supreme. So whatever is claimed for international law, if the Congress says "No." It's no. And if the constitution says, "No." It's no. So that's good. Where this gets a little not so good is people say, and the first person to say this was John Marshall. So it has a lot of momentum behind it. "Well of course, if the Congress really said "No.". N. O. No. Really, okay. Well then it would be no." But if they were, it was not so clear exactly what they were saying. Shouldn't we interpret the statute to avoid a conflict with international law? Shouldn't we steer around it? And that was a very sensible doctrine in the early 19th century when John Marshall pronounced it, because he was thinking about international law as a very much more limited body of rules to keep states from interfering with each other. If you think international law is anything associated with the UN, anything associated with human rights, anything in an environmental treaty or an environmental conference in which they pass the resolutions and then whoa, whoa, whoa, whoa, then you're going to have a tremendous distorting effect on American law. If you say, "We have to steer around every one of those things." So far the Roberts court has been rather emphatic in distinguishing treaties that have a direct effect in American law and those which are just out there in international law, which American courts don't have to acknowledge. That could change. There are many law professors saying, "Oh no, that's really, that's old fashioned. That's paranoid. We have to engage with the world." Okay, so if we have a different Supreme Court that could be softened a lot and that would be disturbing, I think. And so also with the constitutional guarantee. Well the constitution will always be supreme. But there are people saying, "Oh yeah, but we should interpret the constitution to make it accommodating to international law. Let's try to avoid a conflict." So it will not actually be The Constitution. It will be the constitution as softened and squeezed and stretched to accommodate international law. I don't think this can be resolved for all time by a single Supreme Court decision. I think this is another thing that is really about mood. I hope that people can hold on to the idea that it is respectable for Americans, all Americans to want to have a common constitution that is ours. And not feel that we must be constantly bargaining with foreigners about what we are allowed to say in our constitution and what we are allowed to hold to. I think that is a very valuable and important thing. But again, I don't think this can be settled for all time. It will depend on what the outlook of the next, in the immediate term, the next generation of judges, but also of citizens. And you do have an example of the European Union. It's amazing how complacent they are about having their constitutions just completely rewritten by foreigners, which is what the European Union is. It's this thing that's super imposed on the national constitutions and the national constitutions no longer describe how they are governed. Oh I do not think that we are in danger of having two thirds of the Senate endorse a treaty that establishes this. That we are not in danger of, really. That would take a long time, but I think we might well be in danger of having a different set of judicial appointees saying, "Well why can't we accommodate this a little?" Yeah, I mean this meaning international human rights standards. So we've already had four or five cases on the meaning of the eighth amendment guarantee against cruel and unusual punishment. And a majority of Supreme court Justices signing on to opinions, which say, "The international community disapproves this thing that some states are doing, executing people who are 17. International community is against it." Really? What? Why is that a subject for the international community? Why are you bringing that up? And they didn't quite say, in any of these cases, "It's international law, so reluctantly we have to rewrite the constitution." They don't quite say that. They purport to be interpreting the constitution, not overruling it. But they are very explicitly saying, "The constitution maybe should be read differently because otherwise it would put us at odds with what all these international human rights treaties say." Okay. So there, I think it's not a big leap to see more of that. I hope that we do not, but I think that could very well happen and I think that is a thing that people should try to guard against because it's corrosive, I think. Many issues are now considered to be global concerns, like global warming or regulating the internet. Does that mean that international law should take precedence? Is our Constitution too outdated to deal with these very modern issues? The most basic thing is, the constitution is very hard to amend. And it makes it very hard to ratify a treaty. And if you say, "Well, let's fix that difficulty of two thirds of the Senate, that's such a high barrier, we'll amend the constitution." No we won't. It's really hard to amend the constitution. I see that those are both problems and they have both led to work arounds, which are often objectionable and contrary to the spirit of the constitution. But a lot of people say, "Oh, well we just have to, because we have this 18th century constitution." And I'll just say something banal, but it's anyway true. It's a very great strength to have a constitution that is more than 200 years old. That is a very, very great asset to America and if you make it really easy to change or really easy to work around, you are losing the benefit of that asset. Most countries have the opposite problem, which is they say, "Oh, it's the constitution. You don't have to worry.". . . We have our own constitution and it's ours. That is a really valuable thing and we shouldn't be thinking of chucking that or cutting it down just because it's a little bit more complicated to regulate the Internet. It was always complicated, really. I mean it, whatever thing you've thought of today, there was something in the 18th century. I think the biggest difference between today and the 18th century. It's not the technology per se, it's that we have so much easier, more comfortable lives. We have almost anything we want. We don't even have to call up to get it delivered. We just go online and then someone comes and delivers it. And so that makes us very impatient. And one of the advantages, in a way, of people who lived a hundred years ago or 200 years ago was they just knew that life confronts you with a lot of sad and difficult things and you have to have patience and strength and fortitude, and we don't have as much of that. But no constitutional change is going to supply that and we should just remind ourselves, "No, wait. There's some disadvantages, disappointments, awkwardness, which is to be a residue of life because it's life." And so we should not be saying, "Hey, let's just throw away the constitution. It isn't perfect." It's not going to be perfect. Nothing is going to be perfect. And people had a better grip on that 200 years ago, but it's still available to us if we use a little imagination. We could still remind ourselves that sometimes there's a downside that's in the package with the stuff that we really treasure. And it doesn't mean we can just cut it out because you usually kill things if you cut them too deeply. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!