Globalization and Structure

Abstract

TABLE Of CONTENTS INTRODUCTION I. THE STRUCTURAL CONSTITUTION A. Federalism and the Separation of Powers B. Nationalization, Globalization, and the Constitution II. REGULATION AND GLOBALIZATION III. GLOBALIZATION AND CONSTITUTIONAL ACCOMMODATION CONCLUSION INTRODUCTION Sovereignty in the United States is uniquely intertwined with its founding document. An important part of the Constitution is the definition and protection of individual rights, which is a sign of the government's authority and responsibility for the nation's people. (1) A more important aspect of sovereignty, however, rests in the Constitution's creation of the national government, the definition of its powers, and the limits thereon. The Constitution channels the national government's sovereignty through two structures: the separation of powers, which organizes authority within the national government; (2) and federalism, which distributes power between the national government and the states. (3) One need not subscribe to Justice Sutherland's theory in United States v. Curtiss-Wright Export Corp.--that the federal government must possess all sovereign powers available to any nation-state (4)--to agree that the Constitution, at the very least, grants to the federal government many powers traditionally associated with national sovereignty. (5) These powers include the power to enact and enforce domestic laws, (6) make war, (7) reach international agreements, (8) and regulate international commerce. (9) The Constitution often addresses these powers through the structures of the separation of powers and federalism. Separation of powers dictates, for example, that the power to make war is divided between Congress and the President but that the power to make treaties is shared between the executive and the Senate. (10) As a matter of federalism, the Constitution prohibits the states from making war and treaties and from regulating international commerce. (11) Globalization does not directly pressure these structures. A nation could respond to the growing interconnectedness of the international economy by doing nothing, and its constitutional structures would remain unaffected. But it is the natural, and perhaps inevitable, reflex of nations to try to regulate globalization's effects. It is this attempt by governments to expand their regulatory reach in response to globalization that creates distortions in the constitutional structure and, in turn, poses challenges to American sovereignty. Increased cross-border human activity has led to more frequent international cooperation. (12) Take pollution, for example. Pollution crosses national boundaries, contaminates global commons such as the seas, and may even lead to a rise in world temperatures. A single nation cannot undertake unilateral action to successfully regulate pollution of this kind, and international cooperation would suffer from free riders: nations that benefit from the reduction in pollution but refuse to contribute resources or bear any costs to improve the environment. Similar problems are faced by efforts to combat international terrorist groups, control the international drug trade, or stop the spread of nuclear, chemical, or biological weapons technologies. (13) To reap the benefits of collective action, international cooperation is likely to take forms that resemble those of the American administrative state. An international regulatory regime generally will need to reach all activity, regardless of each individual nation's internal hierarchy of authority. In order to regulate global warming successfully, for example, the Kyoto accords must be able to reach all forms of energy use that produce carbon emissions. (14) The Chemical Weapons Convention (CWC) formally regulates all chemicals, no matter their use, source, or location. (15) This sweeping reach usually combines with a permanent international organization that is empowered to settle disputes over the agreement between interested nations. …