At Kyoto, it was decided that if poor countries are not now willing to participate in energy reduction schemes, then a select group of richer nations should set them an example by taking one-sided commitments on themselves. We might see the European Union seek to negotiate such an approach to labor and environmental standards, which would apply to the United States and other affluent countries, even if rejected by China and India. And it is not altogether inconceivable that the United States would participate in such a venture, since it has already made limited - but precedent setting - commitments about internal labor and environmental standards in the NAFTA accords with Canada and Mexico. Clinton himself limned the vision in his latest State of the Union address: we must strive to give international trade "a human face", as earlier in this century we supplied a "human face" to interstate commerce at home. In plainer language, the New Deal for the U.S. economy must now be followed up with a New Deal for the world economy, with the United States itself fully accepting the new international controls this will require.

If the Constitution sets no barrier to such projects, then we may see the United States drawn deeper into a style of governance that looks very much like what the EU countries are now experiencing. True, it would not necessarily involve such a systematic program of integration or such powerful central institutions. But we could, like the Europeans, start by forswearing any notion of a super-legislature and end up with more and more governance by courts and bureaucrats, answering only to advocacy groups that are themselves unaccountable.

On the other hand, it may turn out that the American political system will summon a deep resistance to any such serious foreign intrusions. The United States has been a holdout against many sorts of grand international ventures in this century - from the League of Nations to the Law of the Sea Treaty, from the Children's Rights Convention to the International Criminal Court. Perhaps the first time an international commitment imposes real cost or hardship in domestic affairs, without any direct U.S. legislative endorsement, Congress will rise up and sweep away all the grand visions of the law professors and the advocacy groups. In its domestic applications, international law may turn out to be the equivalent of those codes of proper political campaign tactics or proper journalistic practice, which are sponsored by well-meaning foundations, adumbrated by idealistic academics, endorsed by high-minded editorialists - and ignored by all real-world practitioners.

But the most likely development may not follow either of these alternatives. Lacking an international legislature or an international executive, champions of international law have maintained their credibility by learning to pick their spots - ducking out of sight when legal claims are strongly resisted, re-emerging in those settings where issue networks have prepared the way for success. It will, in other words, be a selective, inconsistent, bureaucratic sort of law, which has a lot of "give" along with its occasional "bite."

That is, after all, what should be expected from the demise of our founding constitutional traditions - a reversion to a pre-liberal world. Sovereignty was itself a concept of the Enlightenment and a part of the liberal vision of law and politics. There was certainly law of a kind in medieval Europe. As Enlightenment thinkers saw it in retrospect, the problem in the medieval world was not too little law but too much. There was the legal edict of the medieval emperors, battling with the opposing constitutional claims of the medieval church, and both in constant tension with a network of feudal relations with their own legal claims. It was also a world without distinct peoples - in the constitutional sense - and without legislatures, in the modern sense of lawmaking bodies. Above all the conflicting, often highly parochial legalistic claims, medieval Europe had a set of visionaries who conversed across borders in a common language unknown to ordinary people - Latin. And its most devoted visionaries talked endlessly about the unity of Christendom, a vision they sustained for centuries in the face of all evidence to the contrary.

This is not a world that any of the American Founders looked back on with nostalgia. But it seems to appeal very much to the champions of global civil society. It remains unclear whether the Constitution can still keep the United States from joining it.

Jeremy Rabkin teaches international law and U.S. constitutional law at Cornell University. His book, Why Sovereignty Matters, has just been published by AEI Press.

Essay Types: Essay