International Law Advocacy and Its Discontents

Walter Russell Mead has recently observed that there are four fundamental strands of thought in US foreign policy.1 He has given these the provocative labels of the Jeffersonian, Hamiltonian, Jacksonian, and Wilsonian schools. At the risk of simplifying Mead's superbly nuanced characterizations, these thrusts in US foreign policy reduce to four discrete paradigms: (1) moral and absolutist, emphasizing the revolutionary values of popular democracy and individual liberty (Jeffersonian); (2) commercial and pragmatic, accentuating the Republic's business values and need to release creative energies (Hamiltonian); (3) honor-bound and populist, displaying the deep-seated and violent cultural values of the American frontier (Jacksonian); and (4) legalistic and elitist, featuring the cosmopolitan values of foreign engagement and functional cooperation (Wilsonian). Obviously, the strength of US foreign policy lies in its ability to draw upon each of these disparate sources of authority and legitimacy, while also reconciling their sometimes contradictory policy prescriptions. It would be facile and counter-intuitive to suggest that one of these ideological strands should have prominence over the others. We should be, to paraphase Thomas Jefferson's First Inaugural Address, Jeffersonians, Hamiltonians, Jacksonians, Wilsonians all. Despite this, our raging domestic culture wars have now come down to the shoreline. US foreign policy is again a legitimate target of popular discourse about the place of values in our governing laws and institutions. Even if we have accepted that party politics can intrude on foreign affairs (despite protestations to the contrary, this has often been the case), we have often been less comfortable with the intrusion of social ideology as a motive force for the development of foreign policy objectives. This phenomenon can be observed in many facets of US foreign policy-making today. Indeed, I suggest that it is the central theme of the United States's confrontation with the complex of phenomena we call globalization. But the subject of this essay is much, much narrower: the ideological responses to the growing use of US courts and judicial processes in the vindication of international human rights. Professor Curtis Bradley's contribution2 joins a small, but growing, body of literature which considers the broader procedural, structural, constitutional, and foreign policy implications of international human rights litigation in the United States.3 What I will refer to here as the standard critique of international human rights advocacy is a welcome development, if for no other reason than earlier writings on this general subject, and particularly on the role of the 1789 Alien Tort Statute ("ATS"),4 have tended to be unfocused and uncritical in their commentary and undeniably optimistic in their conclusions. I emphasize that my concern here is to examine the current discontents of international human rights litigation in the US, particularly civil litigation brought at private instance under the ATS. Significant also are the wider legal doctrines surrounding suits against entities that qualify for immunity as foreign sovereigns,5 and the prudential grounds that might counsel US courts from declining to rule on the merits of these cases (including the political question and act of state doctrines). Using Professor Bradley's contribution as a point of departure, my essay unfolds in three steps. The first is to consider some false issues and dichotomies that are often raised as criticism of private human rights litigation. The rhetorical purpose of these attacks on ATS litigation is to stereotype human rights advocates and their supporters as marginal, cosmopolite elitists-at once conniving (in a Wilsonian manner) and naive (in a Jeffersonian way). The second step in my analysis rebuts a further discontent of human rights advocacy: that US courts have somehow been hoodwinked into being the pawns of a shadowy, academic conspiracy to subvert fundamental US constitutional values of limited government, separation of powers, and judicial rectitude. …