On Constitutional Democracy and Robust International Law

Contemporary contributions to global political theory have been largely premised on the assumption that international law and constitutional democratic forms of government are readily compatible. However, the relationship between these two ideas has recently come under significant scrutiny. Several constitutional scholars, especially in the United States, have claimed that international regulation’s expanding breadth and reach into domains previously considered under the purview of domestic law and policy is far from unproblematic. The concerns raised by these scholars are numerous, but they coalesce into a relatively clear central contention: namely, that genuine constitutional democracy and the normative expansion of international law are, simply put, incompatible. Allen Buchanan’s The Heart of Human Rights stands out in the philosophical literature for being the only sustained attempt to engage with the problem. Buchanan defends what I shall call (slightly amending his terminology) a “complex compatibility thesis.” The core of Buchanan’s view is that although constitutional democracy and international law are in some tension, the claim that they are incompatible is overstated. There are trade-offs to be acknowledged, but incompatibility simply does not accurately describe the relationship.

Before detailing the main argument of this essay, allow me a word about the scope of my discussion. Buchanan’s articulation of the (allegedly) problematic supremacy of what he calls robust international law (RIL) is very broad. RIL may affect domestic law at any number of levels, from commercial and sanitary standards to constitutional provisions, and it may do so in different ways, from human rights covenants to commercial treaties and regulations associated with membership of global governance institutions. The tension between RIL and domestic legislation is thus potentially very broad. This essay addresses what we may call a restricted interpretation of the conflict discussed by Buchanan, primarily focusing on the tension between RIL and democratic constitutions. My main claim is modest: that Buchanan is broadly correct about the nature of the relationship between RIL and constitutional democracy, but that the tension between them runs deeper than his discussion allows us to see. Put differently, while Buchanan’s approach in The Heart of Human Rights brings us to the correct conclusion, I will claim that it does so without addressing the tension between RIL and democratic constitutions in its strongest form. This tension can be better grasped if we attribute a legitimating role to constitutions. My aim is thus to offer a friendly rejoinder to Buchanan’s thesis, tempered by a note of caution.

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