COMMISSIONED ESSAY: Global Governance vs. the Liberal Democratic Nation-State: What Is the Best Regime?

Encounter at 10: The Power of Ideas
The 2008 Bradley Symposium
June 4, 2008 · Visit http://pcr.hudson.org for more information.

COMMISSIONED ESSAY:

Global Governance vs. the Liberal Democratic

Nation-State: What Is the Best Regime?

by John Fonte

Who Governs

In the coming years of the twenty-first century the ideology, institutions, and forces of "global governance" will directly challenge the legitimacy and authority of the liberal democratic nation-state and American constitutional sovereignty. What is this ideology, what are these institutions and forces, and how do they challenge liberal democracy and American sovereignty? To begin to examine these issues let us start with the primary questions of politics.

Who governs? To whom is political authority responsible? How are rulers chosen? How are rulers replaced? How is the power of rulers limited? How are laws made? How can bad laws be changed? These are the perennial questions of politics. As Plato and Aristotle inquired: what is the "best regime"?

In this first decade of the twenty-first century, has the question of what is the best regime been settled? For many throughout the developed world the answer is yes. Liberal democracy, that hybrid combination of liberalism and democracy, is the"best regime."

Liberalism in traditional political theory means an emphasis on individual rights, free institutions, the impartial rule of law, freedom of speech and association, private property, and freedom for religion, commerce, culture, and educational institutions. Under liberalism, equality of individual citizenship is the norm.

Democracy means rule by the "demos," the people. At the heart of modern democracy is the doctrine that governments derive their powers from the "consent of the governed," as famously put in the American Declaration of Independence. National self-government, popular sovereignty, and majority rule (within constitutional limits, i.e., limited by liberalism) characterize the norms of liberal democracy.

These great questions of politics are in theory answered in liberal democracy. Political authority resides in a self-constituted people based on "consent." This self-governing people choose their own rulers through elections and can replace them if they are unresponsive. The people limit the power of rulers through a constitution that functions as abasic law. Bad laws can be changed by elected national legislatures. Moreover, in practice, democracy occurs only within the borders of individual liberal democratic nation-states. As Marc Plattner, co-editor of the National Endowment for Democracy's Journal of Democracy, recently wrote,"…we cannot enjoy liberal democracy outside the framework of the nation-state." [1]

In his seminal 1989 essay "The End of History," Francis Fukuyama argued that the great question of politics—what is the best "regime"—has been settled. We have arrived at "the end point of mankind's ideological evolution and the universialization of Western liberal democracy as the final form of human government,"[2] Fukuyama declared. To be sure, the practical process of spreading liberal democracy throughout the world might take hundreds of years, but the ideological hegemony of liberal democracy has already been established—that is to say, the notion that the only legitimate form of government is liberal democracy is now widespread and almost universally accepted. Even non-democratic governments either pretend to be democratic in their own particular way or claim that they are working towards democracy.

Fukuyama recognized that there will be competiting ideologies to liberal democracy, but no rival political worldviews with universal appeal, in the final analysis. He argued that the potential ideological rivals (Asian values, Islamic fundamentalism) would not likely gain widespread support among Western intellectuals; thus the crux of his argument is that there are "no rival ideologies with universal appeal."

Global Governance: From Internationalism to Transnationalism

Nevertheless, with the coming of globalization the issue of "who shall govern"is very much alive. For many of the world's elites the big project of the twenty-first century is how to achieve global governance. It is argued that there are global problems, such as war; terrorism; climate change; world hunger; vast inequalities of condition; diseases such as HIV/AIDS; human rights violations; racism, sexism, and xenophobia; and migration or immigration from poor to rich countries. These problems are beyond the capacity of nation-states to "solve." Therefore, some form of "global governance" is required to address them.

There is a crucial distinction between internationalism and transnationalism (or globalism). As a leading theorist, John Ruggie of Harvard's Kennedy School of Government and a former deputy secretary general of the United Nations, explains, "Simply put, postwar institutions, including the United Nations, were built for an inter-national world, but we have entered a global world. International institutions were designed to reduce external frictions between states; our challenge today is to devise more inclusive forms of global governance [italics in the original]." [3]

Unlike the traditional international system of sovereign nation-states, this new transnational system of global governance seeks to establish supranational laws, regulations, and institutions whose authority extends beyond and within nation-states (including democratic ones). Nation-states continue to exist but they are subordinate to transnational authority. This authority is exercised by new definitions ("evolving norms") of international law (really transnational law); transnational courts such as the International Criminal Court; myriad UN conventions that establish new global norms, particularly in the area of human rights; supranational institutions like the European Union; and non-government organizations (NGOs) that act as "global civil society."

Transnational Progressivism: A Post-Liberal Project

At the most abstract level the advocates of global governance loudly proclaim support for human rights, tolerance, justice, and democratic values. British Prime Minister Gordon Brown's April 18, 2008 speech at the Kennedy Library in Boston is a classic example of this type of rhetoric. Brown stated that "global problems require global solutions," and that "the twenty-first century can be the first progressive century in which we created the first truly global society." Further, he spoke of the "need…to face up to the international consequences of poverty and inequality."[4]

What does this mean in practice? What do promoters of global governance advocate at the operational level? As a practical matter the supranational institutions they favor and the group-rights/equality-of-condition policies they promote could be described as "post-democratic" in process and "post-liberal" in substance. What I call "transnational progressivism" has a number of recurring characteristics.

First, the basis of political society ought not to be the individual citizen and voluntary associations, but the identity group, often ascribed, to which one belongs or claims as a primary identification (racial, ethnic, gender, religious if non-Western, sexual orientation, et cetera).

Second, these identity groups ought to be divided into two categories: the privileged (whites, males, Christians, heterosexuals, citizens) and the marginalized (non-whites, females, non-Christians, homosexuals, non-citizens).

Third, the major inequities in society are "systemic" or "institutional," built into the nature of the system. Thus, we have "systemic racism" or "institutional racism," and "systemic sexism," along with homophobia, Islamophobia, and xenophobia that are embedded in the nature of society. The repeated use of this type of rhetoric challenges the legitimacy of the liberal-democratic nation-state. If a political regime is engaged in systemic bias, it clearly is devoid of moral authority and is not really "legitimate."

Fourth, an important goal of society ought to be eliminating these identity group-based inequities. A just society means a group-based equality of condition.

Fifth, the nation-state is an inadequate institution to achieve social justice and isill-suited to the problems of the future. Therefore, national identity, and exclusive national citizenship are, by their nature, problematic.

Sixth, global migration from less developed countries to more developed countries will be a major characteristic of the twenty-first century. Instead of promoting the assimilation of immigrants into an existing national culture, "fairness" requires that we promote transnational citizenship, diaspora consciousness, and group-oriented multiculturalism.

The positions outlined above have entered the mainstream of political discourse not only in Europe, but in America as well. They are being expressed with increasing frequency by American NGOs that are strongly supported by major American foundations, especially the Ford, CS Mott, Rockefeller, and Tides foundations, among others. These foundations supported an NGO report of February 2008 to the United Nations Committee reviewing American compliance with the UN CERD (Convention for the Elimination of Racial Discrimination) Treaty. The NGO report entitled "Structural Racism in the United States" declared, "The United States is responsible for failing to address unjustifiable racial impacts" in education, housing, health care, employment, transportation, criminal justice and other domains.[5]

The United States was admonished to change its laws and to "align" them with the United Nations CERD definition of discrimination that includes "facially neutral policies . . . as well as unintentional action and inaction by individuals' that result in "racially disparate outcomes."[6] Further, the report lamented that "decision-making authority, however, is highly fragmented in the United States" (the federal system).[7] The report recommended that a new federal agency modeled on the Department of Homeland Security coordinate compliance from state and local governments. In addition, it stated that the "US judiciary which as a branch of the US government" has a "duty to act in conformity with CERD."[8]

Close to Home, a publication of the Ford Foundation on NGO human rights activity in the US, discusses the need "to break the chokehold of domestic law."[9] Indeed, the publication states that, "every nation and all people need ultimate recourse to an alternative ethical and legal authority."[10] The Ford document approvingly declared that, "US human rights activists are trying to reshape US society according to a philosophy and framework of rights that most people either have not heard of or have been taught to think of as foreign."[11]

Although both adherents of the liberal democratic nation-state and transnational progressives favor the "integration" of immigrants, the issue is deeply "contested." Democratic national sovereigntists more or less support a form of patriotic assimilation that was successful in twentieth-century America, France, and other democracies (with some modifications to be sure). Global progressives emphasize transnational citizenship, as advocated in a recent Financial Times article on "diaspora consciousness."[12] In the progressive view, "integration" means the incorporation of a specific immigrant community as a specific community that retains loyalties to authorities outside the host democratic nation-state. Thus, instead of European Muslims, the globalists seek to integrate "the Muslim community in Europe" that maintains loyalties to the worldwide ummah.

From the hyphen to the ampersand. In the US, the traditional concept of the proud and loyal hyphenated-American is becoming blurred. There is now discussion of the "Mexican community in America" with transnational (dual) citizenship and political loyalties. Indeed, for the first time ever, thousands of naturalized American dual citizens voted in the 2006 Mexican presidential election and one was elected to the Mexican Congress.[13] A Wall Street Journal op-ed triumphantly declared that the traditional hyphenated-American is being replaced by the "ampersand" citizen.[14] Instead of being a Mexican-American or Dominican-American, one is both a Mexican & American or a Dominican citizen and an American citizen at the same time. The op-ed was written by two mainstream international-immigration law professors, Peter Schuck (Yale) and Peter Spiro (Temple). Schuck is currently involved in an American Enterprise Institute project with James Q. Wilson, and they have edited a new book of essays on understanding American exceptionalism; Spiro has testified before the House Judiciary Committee as the chief Democratic Party witness on dual allegiance (which he favors).

In general, transnational progressivism and its political agenda, listed above, are advancing in ideological world politics. The social base of transnational progressivism is an increasingly connected post-national intelligentsia including elements such as the following: leading US and European international lawyers; international judges; NGOs, especially human rights activists in groups like the American Civil Liberties Union (ACLU), Amnesty International USA and Human Rights Watch; UN officials; EU political leaders and bureaucrats; corporate executives from multi-national companies (the "Davos" crowd—not ideological progressives, but pragmatic allies who see practical benefits in the global governance approach); major American Foundations (Ford, Rockefeller, Mott, MacArthur, Tides, etc.); and, most importantly, practicing politicians throughout the West.

One could reasonably argue that transnational progressivism is more or less the dominant ideology in the European Union, certain European nations, the American university and in many Western political parties. To be sure there is resistance to the transnationalists in all of these institutions from what could be called liberal democratic nationalists. The struggle for power between transnational progressives and liberal democratic nationalists could go either way, but it will be the main ideological event of the twenty-first century.

The European Union. The European Union (EU) represents a model of "post-democratic" governance and "post-liberal" ideology. Originally power was to reside with the member-states represented in the Council of the European Union, but for decades most of the authority has been exercised by the European Commission (EC), the bureaucracy in Brussels. Indeed, legislation is initiated by the EC. The Council and the European Parliament can only refuse to accept policies already formulated by the EC (something they almost never do) or they can amend EC legislative proposals through a rather complicated process. No wonder one of Europe's most prominent sociologists, Ralf Dahrendorf (former commissioner of the EC, current member of the House of Lords) stated that the European Union's decision-making process is "an insult to democracy." He went so far as to say that "it is not just a joke to say that if the EU itself applied for accession to the EU, it could not be admitted because it is insufficiently democratic."[15]

The prevailing ideology within the EU is as close to corporatism as it is to liberalism. Unlike the US with itsstrong First Amendment tradition, the EU and some EU member states restrict free speech through a loose interpretation of prohibitions on "hate speech." Currently, a city council candidate in Austria is being prosecuted for charging Islam with being a "totalitarian system of domination that should be thrown back to its birthplace on the other side of the Mediterranean."[16] Further, the institutions of the EU promote gender proportionalism in elections (with a certain percentage of party parliamentary lists reserved for women. These corporatist measures are enacted in the name of implementing the UN CEDAW Treaty (theConvention on Elimination of All Forms of Discrimination Against Women).

The transnational progressive response to radical Islam. This response has been twofold: Externally, it mostly takes the form of denial that terrorism is in any way connected to Islam. As Princeton University Dean Anne-Marie Slaughter put it: "Our enemy is not Islamic anything. The threat to our security comes from individual terrorists organized in global networks [italics in the original]."[17] At the same time, internally within territorially based nations there is widespread accommodation to Islamist ideology, culture, and even, in some cases, sharia law across the West.

Thus, in March 2007 the Daily Telegraph reported that the European Union issued a classified handbook that banned the words "Islamic" and "jihad" in reference to terrorist attacks. Instead the EU directed public officials to replace concepts such as "Islamic terrorism" with words that are not "offensive" to Muslims.[18] In 2007 British Home Secretary Jacqui Smith instructed its officials to use terms such as "violent extremists" and "criminal murderers" instead of "jihadists" or "Islamic extremists."[19] In the last few months, the US State Department and Department of Homeland Security have essentially followed suit, dropping references to Islam in connection with terrorism.[20]

Throughout the West (and particularly since 9/11) Muslims have been granted special autonomous privileges that contradict the liberal principles of equality of treatment and of citizenship. The Archbishop of Canterbury was roundly criticized when he derided what he called "the legal monopoly" of the British common law and endorsed the partial application of sharia law for British Muslims.[21] Nevertheless, this view has been at least partially incorporated into law. For example, the British government admitted in February 2008 that it has recognized polygamous marriages and provided welfare, housing, and tax benefits for the multiple wives of Muslim husbands.[22]

Even beyond the issue of special privileges, there are regions of the West where de-facto autonomous zones exist outside the control of the democratic nation-state. For example, as of November 2006 the French government has officially recognized that there are 751 "Sensitive Urban Zones," or so-called "no go zones" in France. These are areas where the French state does not exercise authority but where youth gangs, sometimes in collusion with Muslim clerics, rule.[23] Clearly, all of the above constitute a challenge to the so-called reigning "liberal hegemony."

The Response of the American Governing Center-Left to the Transnational Challenge

As noted earlier the activist American left (NGOs such as Human Rights Watch and Amnesty International USA, foundations such as Ford and Mott) embrace a rather radical form of transnational progressivism often remote from the American mainstream. But what of the governing American center-left? By the governing center-left I mean the views of policy makers who serve as political appointees in administrations, such as deputy secretaries of state and assistant secretaries of defense (figures like Strobe Talbott, Anne-Marie Slaughter and Harold Koh), as opposed to "theoretical left" academics, such as Martha Nussbaum at the University of Chicago.

Overall, the American governing center-left is intellectually prepared to deal with transnational governance conceptually and rhetorically. In essence, the governing left has internalized the global governance project as America's "leadership" mission. However, in promoting this "leadership role" the governing left has blurred the boundaries between our constitutional democratic order and post-constitutional supranational governance, while at the same time obfuscating the distinction in foreign policy between traditional American leadership within an inter-national system versus an American "leadership" that translates into acquiescence to a transnational system with its concomitant surrender of democratic sovereignty.

Strobe Talbott clarifies this mindset best. In a memo to Bill Clinton shortly before the 1992 election the future deputy Secretary of State wrote:

"Americans are all for having the Japanese and West Europeans pony up to pay for the Gulf War, but they are mighty chary about any arrangement that smacks of pooled national sovereignty or authority. The way to counter this resistance, of course, is to sell multilateralism as not just an economic imperative but as a means of preserving and enhancing American political leadership in the world, since the various multilateral outfits will be effective only if the US does lead them."[24]

The concept of "pooled" or "shared national sovereignty" is central to the thinking of the transnational elites who are promoting global governance. This is an idea we will be hearing about over and again in the decades to come. Talbott's endorsement of the principle of "shared sovereignty" suggests that his interpretation of "multilateralism" is, in effect, a means of fostering transnational authority.

Dean of the Woodrow Wilson School of International and Public Affairs at Princeton University Anne-Marie Slaughter could be described as the "John Bolton of the left." She would in all likelihoodbe appointed to a top foreign policy post in a future left-of-center administration. Slaughter has envisioned a system of global governance based on "trans-governmental networks."

Slaughter argues that nation-states should cede a degree of sovereignty to transnational networks "horizontally" and supranational institutions "vertically." Horizontally, means, for example, that American judges would interact with foreign judges, quote each other's opinions, and develop joint legal doctrine (what she calls "transjudicialism"). Vertically, she argues that nations should cede sovereign authority to supranational institutions in cases requiring global solutions to global problems, such as the International Criminal Court.[25] In this way, Slaughter maintains that global government networks "can perform many of the functions of a world government—legislation, administration, and adjudication—without the form," thereby, creating a genuine global rule of law.[26]

Harold Koh, the dean of Yale University Law School, served as assistant secretary of state for democracy, human rights, and labor during the Clinton Administration. In a detailed article in the Stanford Law Review responding to the Bush foreign policy, Koh articulates the central viewpoint of the American governing left.[27]

Koh chastises the US for failing to "obey global norms."[28] America, Koh tells us, "promotes double standards" by refusing to ratify the International Criminal Court treaty; "claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons"; and "declining to implement the orders of the International Court of Justice with regard to the death penalty."[29] Indeed, Koh complains: "The World Court finally found that the United States had violated the Vienna Convention" (on the death penalty), but "American courts have essentially ignored" the ruling of the ICJ.[30]

Koh's proposed remedy to American exceptionalism is for "American lawyers, scholars and activists" to "trigger a transnational legal process," of "transnational interactions" that will "generate legal interpretations that can in turn be internalized into the domestic law of even resistant nation-states."[31] For example, Koh suggests that, "human rights advocates" should litigate "not just in domestic courts, but simultaneously before foreign and international arenas."[32] Moreover, they should encourage foreign governments (such as Mexico) and transnational NGOs to challenge the US on the death penalty and other human rights issues.

Supporters of the International Criminal Court should, Koh recommends, "provoke interactions between the United States government and the ICC" that might lead to the US becoming enmeshed in the ICC process (by, for example, having the US provide evidence in ICC trials). These interactions with the ICC would show cooperation with the tribunal and therefore "could be used to undermine" the official US "unsigning" of the treaty because it might "constitute a de-facto repudiation" of the "act of unsignature."[33]

Of course, the "transnational legal process," advocated by Koh (and others in the governing center-left) is a process outside of American constitutional democracy. The American people have a Constitution, judicial institutions, and a democratic political system. Transnational "interactions" (such as appealing to foreign courts) are not part of the institutional authority and accountability inherent in the meaning of the p