Arguing from the Constitution – The Case for Sovereignty: Why the World Should Welcome American Independence by Jeremy Rabkin, AEI Press, 2004, 255 pp.

, March 30, 2006

In this book Rabkin, who teaches international law and American constitutional history at Cornell University, elaborates further on Why Sovereignty Matters, an essay of his published in 1998 by the American Enterprise Institute (AEI).  Rabkin is a staunch supporter of American sovereignty, and in this articulate, well-documented work he offers compelling arguments for resisting attempts to restrict the prerogatives of that sovereignty.

These arguments fall into two distinct categories, the legal and the historical/pragmatic. Both are pursued concomitantly. Rabkin sharply delineates his position in the first five chapters-“Sovereignty in Principle,” “Sovereignty despite Atlantic Community,” “Sovereignty and Security,” “Holy Empire of Human Rights,” and “Trade Rights and Sovereignty.” The last chapter, “American Aims in a Diverse World,” expresses Rabkin’s political credo and ends thus:

The United States does not own the world. It cannot be responsible for everything that happens in the world. But we cannot ignore the fact that the very preponderance of American power gives the United States choices-and, therewith, responsibilities-that no other nation faces…. Independence requires a degree of moral discipline. Americans can take pride in maintaining it. A central cord of American discipline is the commitment to live by rules-not any rules, not necessarily the rules endorsed by others, but the basic political rules laid down in our national constitution. That can be an especially good example to a world in which people in so many nations still expect outside powers to fix their problems, because they cannot rely on their fellow citizens.  The United States may still provide the greatest service to the world by the power of its example.

This statement goes well beyond legal or constitutional issues. Therein, however, lies the book’s main difficulty.

From Academia to Politics

It is easy to follow the book’s logic as Rabkin demonstrates the nature of sovereignty step by step-“Hugo Grotius, the seventeenth century Dutch jurist…gave a precise definition of sovereignty:  the power to act without being ‘subject to the legal control of another'”-and goes on to state: “A sovereign entity would not be sovereign in its own territory if it could not exclude claims by outsiders against its own citizens-or if it could not rely on its own people to ignore such claims when raised against their own government.” It follows that:

No international authority has the same claim over a sovereign state that the federal government has over states in the United States. International authorities cannot order the deployment of American troops (nor troops of any other nation) in the way the President can mobilize and deploy state National Guard forces. Since international authority cannot compel the deployment of force, it cannot readily protect nations when force may be needed. And if it cannot protect nations, it cannot readily control what they do to protect themselves-at least, not without their direct and continuing consent.

The problem is that this direct and continuing consent is what Rabkin does not want the United States to give. And this is where he lays down his academic mantle and steps into the realm of politics. The question is not whether he is right or wrong. Sovereignty versus globalization, internationalism, international tribunals, the role of the United Nations, the power of any country to intervene in another country’s affairs, as happened, for instance, in Iraq-all are issues being hotly debated in the United States today. Usually the controversy is waged on strictly partisan lines.

But can these and related issues be resolved solely on the basis of examining the principles governing the Constitution and the obstacles these principles pose to voluntarily relinquishing some elements of sovereignty? The issue is further muddied by the fact that, in the past, the United States has indeed accepted some such limitations-as Rabkin acknowledges, albeit with certain provisos and strong criticism, in the chapters devoted to security and to trade.

Rabkin mounts a scathing attack on the United Nations’ failure to act on various key issues-from common human rights to preventing massacres and genocides-and also criticizes the functioning of the fledgling European Union. This is problematic-not because it is not justified, but because it could be taken to imply that, were those institutions to function better, the case for resisting any attempt to limit American sovereignty would accordingly be weaker.

The Case for Sovereignty is a fascinating and puzzling book. There is no disputing the author’s deeply rooted conviction or the soundness of his arguments and research.  But at the end of the day, the basic issue will be decided in the political sphere rather than on its legal and constitutional merits.

About Michelle Mazel

Michelle Mazel is a graduate of Sciences Po – the Institute for Political Science – and the Paris Faculté de Droit. She is a writer of both fiction and non-fiction and lives in Jerusalem.