Globalization’s Challenge to American Constitutionalism

‍Dobbs v. Jackson Womens’ Health may have brought more than the reign of Roe v. Wade to an end.  It may also signal a pivot in the path of constitutional law. While the twentieth century bore the rise of individual rights, the next hundred years will bring renewed focus to the Constitution’s structure. But this time, the separation of powers and federalism will address globalization's new challenges.

Today, writers can post their thoughts on the Internet, and they are instantly accessible to anyone connected to a network anywhere in the world. We can move money from accounts internationally with a button or a phone call. We can examine products online, order, and have them arrive on our doorsteps within the week. We can drive to an airport in the United States and attend a meeting in Asia or Europe half a day later. The speed of communication and transportation has led to the rise of international markets and networks, where actions in the United States can produce swift effects halfway around the globe. These rapid changes in the economy and society and the government’s responses will pressure existing doctrines of constitutional law.

America endured this same struggle during its nationalization period in the late nineteenth and early twentieth centuries. For the last century, the Supreme Court, Congress, and Presidents have used the Constitution to expand the scope of individual rights. This occurred because of the Great Depression and the New Deal – the former resulted from a nationalized economy, and the latter was made possible by a corresponding growth in federal regulation. In the century and a half before the Great Depression, however, the Supreme Court had generally enforced strict limits on the federal government’s powers to modify the separation of powers and regulate the economy and society at a national level.  The Court’s protection of individual rights focused on economic liberties, such as a right to contract that overrode federal and state public health and safety laws.

But the Great Depression revealed the nationwide expanse of the economy, for good or ill, and progressives believed it demanded a nationwide regulatory response. FDR sought to match the severity of the economic crisis with nationwide regulation – wage and price controls, social security, and labor laws. The New Deal, however, ran directly into the constitutional law of the day.  When the Supreme Court struck down its first elements, FDR responded with his Court-packing plan, which reverberates to our day.  FDR lost the battle when Congress rejected his plea to expand the Court to 15 Justices.  But he won the war when the Justices reversed course, lifted its restrictions on the scope of federal regulatory power, and downgraded the status of economic liberties.

The political branches and the judiciary reached a confrontation over the Constitution because the existing doctrine could not grapple with the effects of economic and social nationalization. In cases like Hammer v. Dagenhart, the Court’s view of the economy, progressives maintained, ignored the transportation and communications advances that had knitted the states and regions into a national market. Its view that manufacturing and production were distinct and separate from interstate commerce placed strict limits on the national government’s ability to regulate the economy during the Great Depression. In cases such as Schechter Poultry, the Court placed limits on the structure of the administrative state that grew in response to the nationalization of the economy. Constitutional law had failed to keep up with the demands of the twentieth century. The results were a destructive battle between the President and the Court, in which both arguably lost in the short term, and a constitutional law that lifted almost all restraint on the regulatory powers of the administrative state.

Having foresworn its role in policing the boundaries of federal power, the Court embarked on its almost century-long mission to shift the focus of constitutional law to individual rights.  The Court wrought perhaps its finest achievement in Brown v. Board of Education, which struck down racial segregation as a violation of the Fourteenth Amendment’s Equal Protection Clause.  Congress and the President followed suit with the 1964 Civil Rights Act and the 1965 Voting Rights Act.  The Court also led the way by launching a revolution in criminal procedure.  It applied to the Bill of Rights protections – such as the right to counsel, the right to remain silent, and the right against unreasonable searches and seizures – to state police, prosecutors, and courts.  It broadened the freedom of speech and conscience sphere by expanding First Amendment rights.  But at the same time, it went too far in recognizing rights without support in the text of the Constitution under the rubric of “privacy.”  In Roe v. Wade, it found a right to abortion where the Constitution provided none; it followed the logic of its privacy cases to declare a right to engage in homosexuality and gay marriage.

Dobbs seems to spell an end to the Court’s freewheeling ways.  In reversing Roe v. Wade, the majority declared that it would no longer recognize constitutional rights that do not appear in the document’s text nor are confirmed by the original understanding, history, and tradition. The Court long ago brought its revolution in criminal procedure to an end.  Even its efforts to revive other individual rights, such as the right to bear arms under the Second Amendment or religious liberty under the First Amendment, have yet to cause fundamental change in the same order as the Warren Court’s mandate for racial equality or fair criminal proceedings.

But the Court will soon have to confront the same challenge it faced during the New Deal but from globalization rather than nationalization. As never before, the U.S. economy depends on international trade, the free flow of money and people, and the world supply chain. International events affect domestic markets and institutions more than ever. Roughly one-third of all American economic activity is related to imports or exports. Advances in communications, transportation, and the internet have greatly benefited the United States. The September 11, 2001, attacks, human trafficking across the southern border, and the fentanyl epidemic, however, also reveal the adverse effects of globalization. Counter-terrorism, immigration, the environment, drugs, crime, and even mundane issues such as traffic flow exploit the same channels of globalization as the world economy.

Globalization includes the economic, technological, and social changes that have occurred because of the acceleration of communication, transportation, and information systems across national borders. The processes of globalization have led to (1) the explosive growth in international trade, (2) the swift creation of international markets for goods and services, (3) the easy movement of capital and labor across national borders, (4) the rise of major transnational networks of international drug cartels, international crime, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These forces have led the United States and other nations to seek more profound and complex forms of cooperation, often called global governance. International collaboration, usually in the form of multilateral treaty regimes and new international organizations, seeks to regulate what had previously been left to independent sovereign states. The complexity of administering international regulatory regimes—which may involve dozens, if not hundreds, of sovereign states—has led to a greater reliance on international institutions to interpret and enforce legal obligations.

Globalization has prompted government responses similar to those that arose with nationalization. While national economic and social activity now comfortably falls within the federal government’s regulatory grasp, existing constitutional law doctrines cannot easily accommodate the broader demands of international regulation. The political branches and the courts have not thought through how best to adapt the U.S. legal system to mediate between its constitutional structure and global governance.    

Globalization poses the most direct challenge to the fundamental justification underlying the system of government in the United States: popular sovereignty. Unlike other nations, which have located ultimate sovereign power in the nation, its monarch, or its national government, the theory of the U.S. Constitution locates such ultimate sovereign power in the People of the United States. Through the Constitution, the People delegate their powers to the various institutions of the U.S. government, who act merely as the agents of the sovereign. The Constitution is the exclusive source of sovereign power for the U.S. government.

Popular sovereignty depends on the separation of powers and federalism for its protection – those structures guarantee that the government does not exceed the limited delegation of powers by the People. Globalization presents profound constitutional challenges because it demands unprecedented levels of international cooperation. An effective regime must set standards for nearly all forms of energy use worldwide to limit carbon emissions. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. International organizations have been the handmaidens in the explosion of international regimes. Multilateral treaties may ask state parties to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies independent of any nation. Globalization may go beyond national authorities to reach into the domain of the states, which may be the best unit of government to address matters such as crime or drugs.

Efforts at effective international governance create tension with American constitutional rules on using government power. Take, for example, the International Criminal Court. It claims the authority to investigate and even try American and Israeli soldiers for war crimes, despite the refusal of their nations to ratify the ICC treaty and the robustness of their democratic legal systems. To truly enforce international humanitarian law without regard to the wishes of individual nation-states, which might bias a prosecution, the ICC brushes aside domestic limits on government power, such as jury trials or elected prosecutors. Or consider the World Trade Organization, which not only sets the rules for fair trade worldwide, specifying tariffs and prohibiting state favoritism for local businesses, but also claims the right to adjudicate trade disputes independently.

These are just the first of a series of pressures that globalization will place on our constitutional structures. Other questions will abound. Can the President enter global governance regimes without submitting the agreements to the Senate for its advice and consent? To what extent do international court judgments have force in American law, invalidating valid judgments by domestic courts? Can the President and the Senate together sign an international treaty that binds the United States either to legalize or criminalize abortion, or are issues of family law reserved, as a matter of American law, for the states? Should international and foreign laws be used to interpret the U.S. Constitution? May Congress and the President delegate federal authority to international organizations to regulate domestic conduct, for instance, in arms control or carbon emissions? Can international agreements expand the President’s authority to use force abroad to defend the United States and its territory, protect allies, and enforce international norms?

Unlike many international law scholars these days, I do not view separation of powers or federalism as cumbersome technicalities. Nor do I agree with the more forthright transnationalist case for discarding key constitutional principles in favor of greater global cooperation. On the other hand, American constitutional history teaches that our law must adapt to the new circumstances posed by globalization. Our Constitution can accommodate the demands of globalization while still honoring the fundamental principle of popular sovereignty.

Popular sovereignty reflects a basic and essential American commitment to govern by exclusively constitutional mechanisms, such as federalism and separation of powers, creating political institutions through which the people can exercise power. These constitutional structures may prove burdensome or inefficient, but they also enhance accountability and transparency in government—important features of constitutional democracy. Globalization poses real challenges to American constitutional law, but the answer is not, as some would have it, abandoning the core principle of the American political system. Instead, it will be the job of the Supreme Court, Congress, the President, and the states to reshape constitutional law to apply to our globalizing world, hopefully with better results than they achieved a century ago.

John Yoo is Distinguished Visiting Professor in the School of Civic Leadership at the University of Texas at Austin, and the Emanuel S. Heller Chair in Law and Distinguished Professor of Law at the University of California at Berkeley, and a Nonresident Senior Fellow at the American Enterprise Institute.