Uh oh, I appear to agree with John Bolton and John Yoo (sort of)

In an op-ed in yesterday's NY Times , John Bolton and John Yoo made an argument that strongly echoed a 1995 Harvard Law Review article by Larry Tribe: namely, that the Constitution requires important international commitments to be adopted by 2/3 of the Senate exercising the treaty ratification power, rather than by simple majorities in both houses of Congress. (Tribe's article was a response to an article by Bruce Ackerman and David Golove, and the particular issue that separated them was whether NAFTA was invalid because not a treaty. Tribe said it was; Ackerman and Golove said it wasn't. Neither article is available free to all online but both are easily found on Westlaw, Lexis, Heinonline, or JSTOR for subscribers.) Bolton and Yoo don't exactly couch their argument as one of constitutionality, although in some of his academic work Yoo has veered in that direction.

Bolton and Yoo make two points: 1) The U.S. should be skeptical of commitments to international bodies; and 2) that skepticism should be given procedural form through the rigorous super-majority requirement of treaty ratification. In this view unilateral Presidential action or joint Presidential/Congressional action via the ordinary (simple-majority) legislative process will short-circuit the deliberation necessary to avoid unwise international commitments.

Here I want to note that this analysis is at least homologous to my analysis in a recent University of Pennsylvania Law Review article. (The article, Dynamic Incorporation of Foreign Law, is available at 107 U. Pa. L. Rev. 103 for anyone with easy access. To my amazement, it can also be purchased for $9.95 here. Presumably it will soon be available free to everyone for a limited time on the U Penn L Rev website.) In the article, I say that whenever a democratic polity agrees to be governed by decisions taken in whole or in part by another political entity, that polity sacrifices some of its self-government, at least where there are practical barriers to revocation of the agreement. Unlike Bolton and Yoo, I am not generally skeptical of such delegations, but to the extent that the sacrifice of local democratic accountability is worrisome, I--like Bolton and Yoo--propose a procedural remedy. Whereas they would require Senate ratification via the treaty process, I propose representation of the power-delegating polity in the decision-making bodies of the power-receiving entity.

It's easy to dismiss the Bolton/Yoo position through guilt by association but the problem they identify is real, and the politics of particular examples will vary. American political conservatives tend to be skeptical of delegations to international bodies, but at least in recent years, American liberals have had good reason to worry about displacement of permissive state norms (legalizing medical marijuana and physician-assisted suicide, for example) by restrictive national norms. My article (and did I say you could buy it for under $10!!!) attempts to grapple with these problems from a general perspective.

Posted by Mike Dorf