The new confederalism: treaty delegations of legislative, executive, and judicial authority.

• Author: Golove, David M.
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. DELEGATIONS, POPULAR SOVEREIGNTY, AND CONFEDERATIONS A. Federal Theory Before the Founding B. "Congress Is Not a Legislative Assembly, nor a Representative Assembly, but Only a Diplomatic Assembly" C. "The People Have No Right to Enter into Leagues, Alliances, or Confederations.... States and Foreign Powers Are the Only Proper Agents for This Kind of Government" D. "To the Formation of a League, Such As Was the Confederation, the State Sovereignties Were Certainly Competent" E. An "Antipiratical Confederacy" and Other Confirming Evidence II. ANSWERING SOME OBJECTIONS A. The Non-Self-Execution View B. The "Missing Confederations" Objection CONCLUSION INTRODUCTION

One of the most notable developments that has accompanied globalization is the revitalization of the confederal form of governance. The European Union is undoubtedly the most dramatic example. Indeed, the European Union is either rapidly approaching or has already crossed the elusive line which separates a purely confederal arrangement from a genuine federal government. The phenomenon of confederalism, broadly conceived, however, is not a unique regional development. From NAFTA and the WTO to the Chemical Weapons Convention, the Kyoto Protocol and the International Criminal Court, states are rapidly creating new international organizations and endowing them with significant legislative, executive, and judicial authority. Although the immediate precedents for this development are the international organizations which began to be formed during the nineteenth century, culminating in the League of Nations and United Nations systems, these modern confederacies trace their roots back much further, to the ancient confederacies of the Greek city-states; the early modern Dutch, German, Swiss, and American confederacies; and the utopian schemes for a European Confederacy of the Abbe St. Pierre and Henry IV, which inspired both Rousseau and Kant. (1) Of course, the new confederacies, as I will call them, differ in many respects from their historical forebears, but the phenomena are closely enough related to make it sensible, I believe, to speak of a New Confederalism. (2)

These developments, and the future possibilities which they augur, raise fundamental normative questions. What conditions have to be met in order for such entities to exercise legitimate authority? Do the principles of democracy, as worked out at the national level, apply at this level as well and, if so, how and with what adjustments? Through what mechanisms can international decisionmakers be made properly accountable? A rapidly expanding body of jurisprudential work, mostly by European Union and international law scholars, is devoted to answering these and related questions. (3) The urgency of the task is all the more evident, moreover, when the phenomenon is viewed from a wider perspective. Important decisionmaking authority is being transferred to the supranational level not only through the formal mechanisms of a proliferating set of international organizations, but through widening informal transnational regulatory networks which have an increasingly profound influence over the content of domestic law. (4) These trends, in turn, are the result of advances in technology, communications, and transportation, as well as large social, political, economic, and cultural developments. Undeniably, then, the normative questions demand serious attention: What precisely is the nature of the "democracy deficit" and how can it be mitigated, if not solved?

The European Union and international law scholars who have asked these questions have naturally tended to view them through an international lens. The focus has been on the conditions international bodies need to satisfy in order to exercise legitimate authority over the community of states that have ratified the relevant conventions. More recently, however, domestic constitutional law scholars in the United States have begun to ask similar questions, only from a different perspective. Their concern is not with the conditions for the exercise of legitimate authority by international bodies, but with the consistency of exercises of international authority, whether legitimate or not, with the principles of national democracy rooted in the domestic Constitution. (5) Although each treaty raises a unique set of constitutional issues, there is a common question which runs throughout the domestic constitutional law literature: Is there a fundamental "postulate" implicit in the democratic structure created by the Constitution--call it the principle of exclusive national democracy--which prohibits the federal government from delegating any governmental authority over U.S. citizens to officials who are not accountable, directly or indirectly, exclusively to the American electorate? (6) A growing body of U.S. constitutional law scholars seems to think so. (7)

I am skeptical that there are any persuasive normative grounds for such a principle, and I am not aware of any that have been offered in the recent legal literature. (8) The constitutional scholars who have endorsed the principle have generally simply assumed that it is inherent in the idea of popular sovereignty, at least as that ideal was understood by the Founders and incorporated into the United States Constitution. Of course, there is no such principle anywhere stated in the actual text of the Constitution, and so these scholars have looked for it in some rather surprising places--for example, in the principles concerning domestic delegations of legislative, executive, and judicial authority and in the Appointments Clause. (9)

Given the weakness of the doctrines derived from these sources in limiting domestic delegations, they might seem an inauspicious place for skeptics to begin. (10) More importantly, however, these doctrines are primarily concerned with the separation of powers among the branches of the federal government and secondarily with the larger principles of domestic democracy. As a result, they offer little guidance on the kinds of questions raised by the international delegations of authority associated with the New Confederalism. (11) The considerations that are relevant to structuring the forms of domestic democratic government can provide at best only a starting point in thinking about how to structure the relationships which the nation conducts with other sovereign nations for the purpose of carrying out cooperative projects serving mutual interests and addressing common concerns. What underlie the global skepticism about international delegations in recent scholarship are not, or not solely, the concerns which animate the various nondelegation doctrines and the Appointments Clause, but a more or less explicit commitment to the principle of exclusive national democracy.

But does the Constitution embody any such commitment? I do not believe so, though I will not attempt here to defend that proposition in quite so broad a fashion. Rather, I will focus more narrowly on an initial, though undoubtedly relevant, question: Did the Founders themselves actually embrace any such principle and assume that it would apply under the Constitution? Scholars endorsing the exclusivist view often suppose that they did. (12) I believe that a more serious examination of the Founding reveals the fallacy of this assumption. The Founders were neither committed to a principle of exclusive national democracy nor were they opposed in principle to treaty-based delegations of governmental authority to international bodies, including delegations comparable to, and, indeed, even more extensive than, those that characterize the New Confederalism.

The Founders were, in fact, quite familiar with the phenomenon of confederations. They had created one and lived under it for a number of years, affording them reason and opportunity for reflecting on the nature of this form of governance. Particularly as they contemplated the adoption of a constitution creating a new and novel form of federal arrangement, they began to think deeply about the differences between confederations and what we today call federal governments. In Part I of this Article, I trace the development of their thinking in this regard from the Revolution to the adoption of the Constitution. I describe what the differences were, in their view, between confederations and governments and argue that they believed that confederations, properly understood, were appropriate for legislative ratification as treaties (or federal compacts) but that creating a new government required the direct approval of the people at the constitutional level. This understanding corresponded to their practice--the Articles of Confederation rested in most states solely on legislative authority, while the Constitution, they believed, required the approval of the people acting in conventions. Without expressing any doubts as to its constitutional authority, moreover, the Confederation Congress itself had considered concluding a confederation with friendly European powers, and the debates in Philadelphia and the state ratifying conventions over the scope of the treaty power, as well as the constitutional text, reflected this same understanding. In Part II, I then turn to answering some potential objections to my historical claims and their implications.

Because I am not an originalist, I do not wish to suggest that the views of the Founders rigidly control our constitutional horizons today. For that reason, this Article is only the first part of a larger project on the history of constitutional thinking about complex sovereignty pooling arrangements like the Confederation and modern international organizations. Notwithstanding this qualification, however, the early history I recount here is important in its own right and not simply because it dispels a possible misimpression that some may have about the Founders' views. It also uncovers hitherto...