Dialogic federalism: constitutional possibilities for incorporation of human rights law in the United States.

• Author: Powell, Catherine

Where, after all, do universal rights begin? In small places, close to home--so close and so small that they cannot be seen on any maps of the world.... Unless these rights have meaning there, they have little meaning anywhere. Without concerned citizen action to uphold them close to home, we shall look in vain for progress in the larger world. --Eleanor Roosevelt (1) While the U.S. Constitution assigns the power to make and adopt treaties to the federal government, several state and local governments have "adopted" human rights treaties and other international norms, often in response to constituent pressures that are more effectively mobilized at the subnational level. (2) For example, in the absence of federal ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (3) San Francisco has incorporated "principles of CEDAW" into binding local law. (4) In the death penalty context, where the federal government has not yet opted to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights (Second Optional Protocol to the ICCPR), (5) aimed at the abolition of the death penalty, a handful of cities have urged their states, and in some cases the federal government, to support a moratorium, relying on the United Nations Commission on Human Rights' call for such a moratorium. (6)

What are the constitutional implications of this and other moves to bypass the federal government in incorporating and enforcing international human rights? Discussions about the allocation of authority between federal and subfederal systems in the implementation of international human rights law typically proceed by staking out one of two initial positions. (7) At one end of the spectrum, a traditional constitutional theory takes a restrictive view of state and local authority, envisioning hierarchical imposition of federally implemented international law norms through the federal treaty power (8) and determination of customary international law (9) by federal courts. (10) At the other end of the spectrum, a revisionist theory assumes greater fragmentation and authority reserved to the states based on federalism and separation of powers limits on federal authority. (11) "These divergent images capture different moments of political promise and despair, at times focused on the immense power of the national project, and other times appreciating the vitality and durability of forms of governance that, without ... great resources, continue to have social and political force." (12)

Under both models, one system--either federal or subfederal--has a predominant voice in deciding when and how international human rights law is implemented. Such either/or approaches seek to avoid the conflict and indeterminacy created when the distribution of constitutional authority is uncertain. (13) At the traditional/hierarchical end of the spectrum, the conflict is interference with the ability of the nation to speak with "one voice" in foreign affairs, (14) posed by "divergent and perhaps parochial state interpretations" of international law. (15) At the revisionist/fragmentation end, the conflict, at its core, is interference with states' rights by federal courts (without authorization to do so by the federal political branches) and by the political branches (particularly Congress, when it exercises the treaty power to legislate in areas beyond those specifically conferred in the U.S. Constitution, Article 1, Section 8). (16) While the two paradigms described here are idealized and oversimplify the subtlety and hybridity within these paradigms, in fact much of the scholarship on federalism and human rights law in the United States loosely tracks one or the other of these two models, if not always in its purest form.

This Article argues for a third approach, premised on dialogue and intergovernmental relations as a way to negotiate, rather than avoid, conflict and indeterminacy. (17) This approach links national and subnational governments in a dialogue about rights by "creat[ing] areas of overlap in which neither system can claim total sovereignty." (18) The dialogue emerges in these areas of overlap, particularly where differences arise in the extent to which national and subnational governments incorporate human rights obligations. Conflict and indeterminacy are desired conditions, so long as mechanisms exist to channel and resolve these differences and ambiguities, as a means of clarifying and articulating international human rights domestically. By contrast, where one system has sovereignty to act without the consensus and support of the other, the reach of international human rights law lacks both depth and breadth. Under the traditional/hierarchical model, human rights law lacks depth and concreteness because the democratic deficit inherent in the formation and ratification of treaties (19) disables the federal government from gaining support for human rights at the state and local level. Under the revisionist/fragmentation model, human rights law lacks breadth and national impact in the absence of some form of national cooperation and coordination. By requiring intergovernmental cooperation and dialogue, the third approach offered here facilitates the difficult process of working out how to convert abstract international law principles into concrete, workable domestic laws and policies with national reach.

I call this arrangement "dialogic federalism" because it is based on the assumption that dialogue among various levels of government is critical to meaningful implementation of international human rights law in the United States. (20) It also assumes that engagement in this intergovernmental dialogue occurs hand in hand with dialogue between and among various international, national, and subnational actors and constituencies. Rather than facilitate mere transmission of the international, then, this approach envisions a process of translation of international to national. (21) Just as we know that translation from one language to another requires more than literalness, we must recognize the creativity, and therefore the uncertainty, involved in domestic interpretation [of international law.]" (22) After all, while translation owes fidelity to the other's language and text (the "other" here being international law), it also requires assertion of one's own language as well ("one's own" being domestic law). (23) "The ideal is thus neither wholly international nor wholly national, but a hybrid that express[es] the relationship between them." (24) The negotiation between international and domestic legal regimes, and the hybridity which results, are the driving forces behind translation of broad international principles into concrete articulation of rights reflected domestically in law and practice. (25)

The translation metaphor is central to the model of dialogue envisioned in this Article, because it captures the foreignness that many Americans associate with international law. As a formal matter, ratified treaties and customary international law are law of the land in the United States. (26) As a practical matter, however, international law is often viewed as an alien source of law, lacking democratic legitimacy. This latter view is reflected in Supreme Court jurisprudence. (27) Translation from international to domestic law through broad-based democratic deliberation and discussion is necessary to address the democratic deficit inherent in the ways international law is implemented in the United States. While particular democratic deficits characterize lawmaking processes in the United States generally, (28) this Article argues that the problem is aggravated in the making and implementation of international law because of lack of transparency in the international processes in which treaties are negotiated as well as in the domestic processes by which treaties are ratified by the Senate, without input from the House, unlike purely domestic legislation. By allowing incorporation of international law through multiple points of entry, dialogic federalism facilitates translation at various sites with broader participation, ensuring thicker, more complex understandings of human rights law.

This dialogic approach is both descriptive and prescriptive. It is descriptive in that it theorizes by looking at existing intergovernmental collaboration and dialogue. Dialogic federalism is also prescriptive in that it encourages state and local participation even where none exists and posits a constitutional analysis about this participation. The constitutional analysis draws inspiration from scholarship on democratic experimentalism, a theory of American constitutionalism that reinterprets democratic deliberation as a means of reducing the distance between two visions of the Constitution. (29) One vision rests on the Madisonian ideal of limited government based on complex divisions of powers. (30) The other rests on the New Deal synthesis involving an all-powerful Congress that delegates much of its authority to expert agencies, which are presumably checked through judicial oversight when rights are violated. (31) Dialogic federalism extends this theory by investigating new modes of democratic deliberation in the context of domestic implementation of international human rights law. In the international human rights context, these new modes of democratic deliberation must resolve the tension between the Madisonian project's commitment to decentralizing authority (32) and the fact that the Constitution created national institutions "precisely to avoid such balkanization of foreign policy and international affairs." (33)

As a constitutional thesis, dialogic federalism reveals what both the traditional/hierarchical and revisionist/fragmentation models fail to fully capture and offers a normative framework for negotiating (rather than avoiding) the conflict and indeterminacy...