Jed Rubenfeld: The Two World Orders (Autumn 2003)

What's the source of America's growing unilateralism? The easy answer is self-interest: We act unilaterally to the extent that we see unilateralism as serving our interests. But the answer prompts a more searching question: Why do so many Americans view unilateralism this way, given the hostility it provokes, the costs it imposes, and the considerable risks it entails? Americans sometimes seem unilateralist almost by instinct, as if it were a matter of principle. Might it be?

It will not do to trace contemporary U.S. unilateralism to the 18th-century doctrine of isolationism, for unilateralism is a very different phenomenon. An isolationist country withdraws from the world, even when others call on it to become involved; a unilateralist country feels free to project itself— its power, its economy, its culture—throughout the world, even when others call on it to stop. Although there may still be a thread of isolationism in the United States today, unilateralism, the far more dominant trend, cannot usefully be derived from it.

It's undoubtedly true that, after the war, Americans followed the path Roosevelt had charted and led Europe and the world toward an unprecedented internationalism. We were the driving force behind the United Nations, the primary drafters of the initial international human-rights conventions, the champions of developing an enforceable system of international law. Indeed, America pressed on Europe the very idea of European union (with France the primary locus of resistance). At the same time, America promoted a new constitutionalism throughout Europe and the world, a constitutionalism in which fundamental rights, as well as protections for minorities, were laid down as part of the world's basic law, beyond the reach of ordinary political processes. How then did the United States move from its postwar position of leadership in the new international order to its present position of outlier?

The Cold War played an essential role in the change, fracturing the new international order before it had taken root. At the same time, the Cold War also had the effect of keeping the Atlantic alliance intact for many decades by suppressing divisions that would show themselves in full force only after 1989. When, in the 1990s, the United States emerged as the last superpower standing, it became much easier for the forces of European union to move ahead and for the buried divisions between America and its European allies to be made apparent. The most fundamental of those divisions had been the most invisible: From the start, the postwar boom in international and constitutional law had had different meanings in America and Europe—because the war itself meant different things in America and Europe.

Whether out of hubris or principle, or both, the United States has not understood its support for international law and institutions to imply a surrender of its own commitment to self-government. As the international system became more powerful, and international law diverged from U.S. law, the United States inevitably began to show unilateralist tendencies—not simply out of self-interest but because the United States is committed to democratic self-government. The continental European democracies, with their monarchical histories, their lingering aristocratic cultures, and their tendency to favor centralized, bureaucratic governance, have always been considerably less democratic than the American democracy. It's not surprising, then, that in forging the European Union they should be so tolerant of what Europeans casually refer to as the Union's "democratic deficit."

Three specific developments over the past decade helped press the United States toward unilateralism: the 1999 military intervention in Kosovo; a growing skepticism about international law, including the concern that international law might be used as a vehicle for anti-Americanism; and the events of September 11, 2001.

Because of [the Iraq] war, U.S. unilateralism is now identified in many people's minds with U.S. military aggression and the occupation of Iraq. I am not arguing here either for or against the Iraq War; the case for U.S. unilateralism does not turn on the justifiability of that war. The fundamental question is this: Which of two visions of world order will the United States use its vast power to advance? Since World War II, much of "old" Europe has been pursuing an antinational, antidemocratic world constitutionalism that, for all its idealism and achievements, is irreconcilable with America's commitment to democratic self-government.

The justification of unilateralism outlined here is not intended to condone American disdain for the views of other nations. On the contrary, America should always show a decent respect for the opinions of the rest of mankind, and America would be a far safer, healthier place if it could win back some of the support and affection it has lost. Unilateralism does not set its teeth against international cooperation or coalition building. What sets its teeth on edge is the shift that occurs when such cooperation takes the form of binding agreements administered, interpreted, and enforced by multilateral bodies—the shift, in other words, from international cooperation to international law. America's commitment to democratic self-government gives the United States good reason to be skeptical about—indeed, to resist—international legal regimes structured, as they now are, around antinationalist and antidemocratic principles.

The unilateralism I am defending is not a license for aggressive U.S. militarism. It is commanded by the aspirations of democracy and would violate its own essential principles if it were to become an engine of empire. But the great and unsettling fact of 21st-century global governance is that America is doomed to become something like a world policeman. With the development of small, uncontainable nuclear technologies, and with the inability of the United Nations to do the job, the United States will be in the business of using force abroad against real or feared criminal activity to a far greater extent than ever before.

This new American role will be deeply dangerous, to other nations and to our own, not least because American presidents may be tempted to use the role of world's law enforcer as a justification for a new American militarism that has the United States constantly waging or preparing for war. If the United States is going to act unilaterally abroad, it's imperative that in our domestic politics we retain mechanisms for combating presidential overreaching.

Since September 11, 2001, the White House has flirted with a dangerous double unilateralism, joining the president's willingness to act without international consent abroad to an effort to bypass Congress and the judiciary at home. In December 2001, without congressional approval, the president announced the withdrawal of the United States from an important missile treaty with Russia. In early 2002, the White House began claiming a presidential power to deem any individual, including an American citizen arrested on American soil, an "enemy combatant" and on that basis to imprison him indefinitely, with no judicial review. Later that year, the president came close to asserting a power to make war on Iraq without express congressional authorization.

This double unilateralism, which leaves presidential power altogether unchecked, is a great danger. If we are to be unilateralists abroad, we have a special responsibility—to ourselves and to the world—to maintain and reinvigorate the vital checks and balances of American constitutionalism at home.

(From Rubenfeld, Jed, "The Two World Orders," The Wilson Quarterly (Autumn 2003). The original post is at The Wilson Quarterly.)