Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry

Abstract

Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement refraining American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairsas that which is "foreign" is domesticated through several routes.

Claiming Rights across Borders: International Human Rights and Democratic Sovereignty

“…However, because the Universal Declaration is "only" a declaration of principles and does not detail mechanisms for enforcement, some argue that it does not function sufficiently as law (Koskenniemi 2001), while others see it as a different kind of law. In several articles, Judith Resnik (2001Resnik ( , 2006Resnik ( , 2008 has claimed that by ratifying treaties, domestic obligations are altered, and that particularly in a federal system, judges duly regard valid treaties as binding law. Resnik (2006Resnik ( , 1564Resnik ( -1670 calls such processes "law's migration" and cites numerous examples: "[A] federalist structure also serves as a path for the movement of international rights across borders.…”

“…In several articles, Judith Resnik (2001Resnik ( , 2006Resnik ( , 2008 has claimed that by ratifying treaties, domestic obligations are altered, and that particularly in a federal system, judges duly regard valid treaties as binding law. Resnik (2006Resnik ( , 1564Resnik ( -1670 calls such processes "law's migration" and cites numerous examples: "[A] federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the UN Charter and the 33 "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."…”

“…How do local struggles intersect with global discourses on women's rights? What role is played by feminists in the 34 See Resnik 2006, 1564. Lauterpacht (1973 also claimed that "duly ratified treaties are a self-executing part of municipal law;" (28) and "that the Constitution of the US, gives Congress the right to define and punish, inter alia, 'offenses against the law of nations'" (39).…”

What's Happened to American Federalism?

“…In addition, state legislatures, mayors, and national organizations of local officials have endorsed transnational agreements despite the federal government's refusal. 32 The use of the federal system by national movements points to a new direction in the study of federalism. Rather than attempting to understand changes in the relationship between the federal and state governments by focusing on the preferences or culture of electorates, we can focus on the way large-scale political movements transform the federal system as they pursue their own agendas.…”

The Right to Science and Culture

“…Judith Resnik offers a more complex account of the interaction between international human rights norms and the U.S. legal order, noting multiple ways that internationally accepted human rights norms reenter American legal discourse and impact domestic lawmaking beyond direct application of human rights treaties by the courts. 234 Similarly, Melissa Waters notes a recent trend in many common law jurisdictions to incorporate international human rights norms into domestic law through a variety of mechanisms, eliding the formalist distinction between binding and non-binding instruments.…”