Unpopular Popular Constitutionalism

Abstract

Given that the Constitution is ambiguous about how to enter into international trade agreements, what process squares best with the nation’s general constitutional and democratic commitments? Most opinion polls on the subject have shown that, in American political culture, concern persists regarding the legislative framework for expanding national economic openness through trade liberalization. At least as measured by such instruments, Americans have tended not to approve of the fast track mechanism for entering into trade agreements. Moreover, though there has been strong support for the general principle of free trade, such polls have shown a belief that trade liberalization as currently pursued too strongly favors the interests of business over workers, the environment and the poor at home and abroad – and that these latter interests should be more effectively incorporated. Together, these data indicate a belief that the procedural mechanism of the fast track may in part be responsible for producing the perceived substantive shortcomings of the current trade regime. So is there a democratic deficit here that should concern the U.S. Constitution? In this Article, I argue that constitutional and democratic theory offer only ambiguous support for popular constitutionalism in international economic policy-making, but that the stability and forward momentum of the multilateral trade regime nevertheless depend on its ability to meet satisfactorily with democratic and constitutional concerns.