Jay asserted in Federalist 3 that “it is of high importance to the peace of America that she observe the law of nations towards [foreign] powers” (p. 95).
Madison glimpsed the need for transnational oversight to restrain transnational injustice. He wrote in Federalist 63 (p. 369): “What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?” In describing the problem, Madison reveals the solution: the relevant policies should be evaluated “by the unbiased part of mankind.” He writes in the same passage that “in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”53 And in Federalist 43, he allows himself to hope that the federalist solution to interstate conflict might find an international analogue:
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! (p. 283, emphasis added)
Madison’s cosmopolitan intimations are remarkable because they predate the creation of international institutions that could serve as a model, and because his fear of the injustices America may inflict on outsiders long precedes its rise to global hegemony. In our own time, when the problem is incomparably more grave and the path to a remedy easier to discern, Madison’s cosmopolitan reasoning should be carefully heeded.
Do international institutions suffer from a democratic deficit? (For if so, the cosmopolitan and democratic readings of Madison may be in tension with each other.) I argue in Chapter 6 that international human rights institutions, like constitutional bills of rights, do not subvert democracy because they bar policies that governments should not consider anyway. What about international institutions that address issues of justice and the common good beyond human rights? The question may be too complex to admit a straightforward answer. On the one hand lie fears that decision-making power is delegated to supranational bodies too little dependent on the popular will, and that participation may be extended to nondemocratic governments that do not allow popular input at all. On the other hand lie arguments that in democratic states the people in fact exercise some control over international institutions, and that international institutions remedy a democratic deficit inherent in a Westphalian system, namely, the ability of states to affect the lives of outsiders without the latter’s consent. Exploration of this important controversy, however, lies beyond the scope of this book.
It is customary to cite Kant as a source of cosmopolitan thought. I close with the suggestion that Kant’s essay on “Perpetual Peace” and Madison’s Federalist essays provide a necessary complement to each other. Madison theorizes a compound republic in which the union can harness the critical energies of its component parts to check injustice. But the main part of his theory is constructed within a national frame. He intimates but does not render explicit the cosmopolitan tendency of his thought. Kant theorizes the possibility of international institutions, yet his understanding of such institutions is circumscribed. For example, he grasps that lasting peace depends on the emergence of republican constitutions, but does not call on international institutions to encourage the emergence or guarantee the preservation of such constitutions. The closest he gets to the topic is to state his categorical opposition to the forcible interference by one nation with the constitution and government of another.54 Kant and Madison supply the missing elements of each other’s vision. Kant shows that countries can form not only treaties but also international institutions to promote peace and justice. Madison shows that separate polities can create an overarching structure that consolidates and promotes republican institutions at the unit level.55
The lesson to be drawn from a careful reading of Madison’s political theory is that democratic states should help one another live up to their constitutional commitments. How this idea might be implemented in practice is the subject of my next chapter.
Chapter 3
Europe and the Virtues of International Constitutionalism
Constitutional democracy, when confined to the national level, is a fragile arrangement. If a leader or party targets constitutional restraints that stand in its way, domestic opponents may lack the power to stop it. Even when constitutional processes are formally left in place, human rights may be violated if the responsible guardians do not rise to their defense. Fear, xenophobia, sectarianism, prejudice, indifference, and political intrigue are powerful solvents of constitutional commitments. History offers many examples of formal democracies that have allowed systematic human rights violations or even slid into dictatorship.
It stands to reason that if internal safeguards are vulnerable, help should be sought from the outside. External monitoring and constraint provide domestic checks and balances with the backing needed to operate most effectively. This is an argument for the internationalization of constitutional democracy. The claim I am making is not that transnational problems require democratic decision making at the transnational level (though that also is true), but rather that a commitment to preventing human rights violations by one’s own government makes the involvement of international institutions necessary. We often think of international human rights institutions as a means for certain countries to improve the human rights records of other countries. But international human rights institutions also help democracies fulfill their own constitutional commitments. They complete the domestic constitutional order.
I develop the argument in this chapter through an examination of the regional system of human rights protection in Europe.1 There can be no doubt that this system has contributed dramatically to the protection of human rights. I do not offer a simple celebration. There have been major shortcomings and outright failures. But honesty requires recognition of the regime’s achievements as well as its shortfalls. The plain fact is that it has altered the political course of many countries for the better and ensured the safety and well-being of large numbers of people.
The regime’s success has depended on a partnership connecting international institutions, states, and civil society. The regional bodies give nongovernmental actors new means to demand human rights improvements from states; committed states strengthen the powers and raise the standards of the regional bodies, and these in turn oblige states to honor their commitments. The regime has accomplished what few if any European states could have done on their own, even within the domestic sphere. It mirrors, reproduces, reinforces, and is in turn reinforced by the human rights commitments of the more democratically advanced states. It showcases the power and promise of cooperative constitutionalism.
Several lessons from the European experience are anticipated in the constitutional philosophy of James Madison. What I have in mind are the following broad themes: a belief that good constitutional design brings out the best while suppressing the worst in human nature; a simultaneous commitment to popular government and the protection of individual rights; an insistence on dividing power and duplicating responsibility so as to encourage deliberation and deter abuse; an appreciation for both the institutional and pedagogical value of bills of rights;2 an awareness that human rights face dangers from emboldened majorities on the one hand and privileged minorities on the other; an understanding that a plurality of interests and identities is a resource rather than a problem, and is indeed necessary to avert injustice; a flexible and experimental attitude that welcomes improved means to secure
