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 reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs—as that which is “foreign” is domesticated through several routes. author. I was helped by exchanges with Dennis Curtis, Vicki Jackson, Reva Siegel, Karen Knop, Oona Hathaway, Harold Koh, Seyla Benhabib, Ariela Dubler, Catherine Powell, Elizabeth Dillon, Laura Wexler, Bert Lockwood, Kenji Yoshino, Beverly Baines, Lorraine Weinrib, Cherie Booth, Dan Esty, Kim Rubenstein, Kathryn Sklar, Anne Goldstein, Alice Miller, Angela Ward, Sarah Van Walsum, Nancy Gertner, Marsha Freeman, Jael Silliman, Ellen Dorsey, Sarah Albert, and Billie Heller, as well as those at conferences and workshops at Yale, the University of Melbourne, Columbia University, Vrije University (Netherlands), and the University of Toronto. Thanks to Gene Coakley and Camilla Tubbs for innovative library assistance, to Morris Cohen on early American materials, to former and current students including Kate Andrias, Joseph Blocher, Liz Brundige, Josh Civin, Paige Herwig, Johanna Kalb, Anita Khandalwal, Alison Mackenzie, Marin Levy, Julie Suk, Jennifer Peresie, Bertrall Ross, Laura Heiman, Hannah Hubler, and Alana Tucker, to The Yale Law Journal staff, and to Marilyn Cassella, for facilitating communication among us all. 2:13:45 PM4/24/2006RESNIK 4/24/2006 2:13:45 PM