Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism

Abstract

What does federalism have to do with the question of what role "foreign" law does or ought to play in the United States? That issue frames this Article. In the United States, a movement that I call exclusive sovereigntism seeks to buffer the United States from "foreign" influences. That approach takes shape through various efforts; the two in focus here are attempts to limit judicial reliance on "foreign" law in constitutional interpretation and to constrain localities from aligning themselves with transnational efforts on human rights and global warming. Just as the expressions of exclusive sovereigntism are diverse, so are the political propositions that support it. The facet explored here is the sovereigntist claim that the democratic structure of American federalism makes the tum to "foreign" law especially problematic. State autonomy and democracy are proffered as reasons to hold comparative and internationalist forays by judges and local officials at bay. I appreciate and share sovereigntists' focus on law, its sources, and its speakers as important parts of the identity-building activity of nation-states. The acts of pronouncing, reiterating, implementing, and internalizing legal obligations are ways in which to make certain rules and practices constituent of community membership. Moreover, given that judges are specially situated legal actors, the attention paid to their words is appropriate. Through the vividness of conflicts over specific cases, judges become highly visible speakers asserting the meaning of a nation's law.