The Promise of Human Rights. Jamie Mayerfeld
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I do not wish to be misunderstood: there are obvious differences between an international human rights regime and the kind of compound republic that Madison aimed to achieve by means of a closer union of the original American states. An international human rights regime (of the kind found in Europe) is unlike a national government, because it lacks its own legislature and military or police apparatus, and because its mandate extends only to human rights rather than the much wider set of purposes entrusted to national governments (though as in Europe it may be enmeshed in regional organizations exercising broader governance responsibilities). However, it provides the advisory, admonitory, deliberative, and adjudicative functions that Madison argued in Federalist 10 and 51 were necessary for the promotion of justice. It rests on Madisonian principles of wise constitutional design.
Because of his commitment to justice, Madison is pledged to the rights of outsiders. This is the third source of his cosmopolitanism. The third, fourth, and eleventh Vices of the Political System of the United States are, respectively, “Violations of the law of nations and of treaties,” “Trespasses of the States on the rights of each other,” and “Injustice of the laws of the States.”47 The rights of minorities and outsiders are closely connected; both groups stand as outsiders to legislative majorities with the power to dispose of their fates. In discussing the “Injustice of the laws of the States,” Madison comments: “Is it to be imagined that an ordinary citizen or even an assembly-man of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.?”48 Madison wrote to George Washington on April 16, 1787, that in the absence of institutional reform “the States will continue to invade the national jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest.”49
The legal education of the time was steeped in the law of nations, and Federalists held it in highest regard. They were alarmed to see widespread violations of the law of nations by individual states under the Articles of Confederation, and viewed the prevention of such violations as one of the chief purposes of the Constitution.50 When presenting the Virginia Plan to the Constitutional Convention, Edmund Randolph listed among the defects of the Articles “that they could not cause infractions of treaties or of the law of nations, to be punished.”51 Madison’s first question in response to the New Jersey Plan was:
Will it prevent those violations of the law of nations & of Treaties which if not prevented must involve us in the calamities of foreign wars? The tendency of the States to these violations has been manifested in sundry instances. The files of Congs. contain complaints already, from almost every nation with which treaties have been formed. Hitherto indulgence has been shewn to us. This cannot be the permanent disposition of foreign nations. A rupture with other powers is among the greatest of national calamities. It ought therefore to be effectually provided that no part of a nation shall have it in its power to bring them on the whole.52
John Jay asserted in Federalist 3 that “it is of high importance to the peace of America that she observe the law of nations towards [foreign] powers” (p. 95).
Madison glimpsed the need for transnational oversight to restrain transnational injustice. He wrote in Federalist 63 (p. 369): “What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?” In describing the problem, Madison reveals the solution: the relevant policies should be evaluated “by the unbiased part of mankind.” He writes in the same passage that “in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”53 And in Federalist 43, he allows himself to hope that the federalist solution to interstate conflict might find an international analogue:
In cases where it may be doubtful on which side justice lies, what better umpires could be desired by two violent factions, flying to arms, and tearing a State to pieces, than the representatives of confederate States, not heated by the local flame? To the impartiality of judges, they would unite the affection of friends. Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of mankind! (p. 283, emphasis added)
Madison’s cosmopolitan intimations are remarkable because they predate the creation of international institutions that could serve as a model, and because his fear of the injustices America may inflict on outsiders long precedes its rise to global hegemony. In our own time, when the problem is incomparably more grave and the path to a remedy easier to discern, Madison’s cosmopolitan reasoning should be carefully heeded.
Do international institutions suffer from a democratic deficit? (For if so, the cosmopolitan and democratic readings of Madison may be in tension with each other.) I argue in Chapter 6 that international human rights institutions, like constitutional bills of rights, do not subvert democracy because they bar policies that governments should not consider anyway. What about international institutions that address issues of justice and the common good beyond human rights? The question may be too complex to admit a straightforward answer. On the one hand lie fears that decision-making power is delegated to supranational bodies too little dependent on the popular will, and that participation may be extended to nondemocratic governments that do not allow popular input at all. On the other hand lie arguments that in democratic states the people in fact exercise some control over international institutions, and that international institutions remedy a democratic deficit inherent in a Westphalian system, namely, the ability of states to affect the lives of outsiders without the latter’s consent. Exploration of this important controversy, however, lies beyond the scope of this book.
It is customary to cite Kant as a source of cosmopolitan thought. I close with the suggestion that Kant’s essay on “Perpetual Peace” and Madison’s Federalist essays provide a necessary complement to each other. Madison theorizes a compound republic in which the union can harness the critical energies of its component parts to check injustice. But the main part of his theory is constructed within a national frame. He intimates but does not render explicit the cosmopolitan tendency of his thought. Kant theorizes the possibility of international institutions, yet his understanding of such institutions is circumscribed. For example, he grasps that lasting peace depends on the emergence of republican constitutions, but does not call on international institutions to encourage the emergence or guarantee the preservation of such constitutions. The closest he gets to the topic is to state his categorical opposition to the forcible interference by one nation with the constitution and government of another.54 Kant and Madison supply the missing elements of each other’s vision. Kant shows that countries can form not only treaties but also international institutions to promote peace and justice. Madison shows that separate polities can create an overarching structure that consolidates and promotes republican institutions at the unit level.55
The lesson to be drawn from a careful reading of Madison’s political theory is that democratic states should help one another live up to their constitutional commitments. How this idea might be implemented in practice is the subject of my next chapter.
Chapter 3
Europe and the Virtues of International Constitutionalism
Constitutional democracy, when confined to the national level, is a fragile arrangement. If a leader or party targets constitutional restraints that stand in its way, domestic opponents may lack the power to stop it. Even when constitutional processes are formally left in place, human rights may be violated if the responsible guardians do not rise to their defense. Fear, xenophobia, sectarianism, prejudice, indifference, and political intrigue are powerful solvents of constitutional commitments. History offers many examples of formal democracies that have allowed systematic human rights violations or even slid into