The Winding Course of the Massachusetts Burma Law: Subfederal Sanctions in a Historical Context

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INTRODUCTION

For centuries, American states have been on the vanguard of human rights activism. Since the prohibition of the slave trade in the 1800s, it has been the practice of states to adopt legislation reflecting the moral impetus of its citizens. Through economic boycotts and other forms of activism, states and municipalities have conveyed the sentiments of its citizens dating back to the Boston Tea Party. Similarly, in the 1980s, state and local activism calling for an end of the white minority's national policy of racial separatism and subjugation of the black majority in South Africa preceded the transformation of the apartheid regime in Pretoria.

Following this distinguished legacy, the public spotlight has trained its eye on human rights abuses committed by the Burmese1 military junta, the State Peace and Development Council (SPDC). IMAGE FORMULA9

In 1988, the SPDC, under its more ominous name "SLORC,"2 engaged in a violent crackdown against the Burmese pro-democracy movement. In 1989, the SLORC imprisoned the leader of the National League for Democracy (NLD), Nobel Prize winner Aung San Suu Kyi.3 Similarly, in 1990, the SLORC suppressed the results of free elections, which they resoundingly lost to the NLD, and they have continued their authoritarian rule ever since.4

Prominent human rights groups such as Amnesty International, Human Rights Watch, and the Free Burma Network have generated ongoing publicity and public condemnation of the SPDC's violent suppression of democracy in Burma, as well as widespread labor abuses and racial and religious persecution.5 In response, there has been an intensifying call by U.S. national and subfederal governments as well as international organizations for the Burmese military government to democratize and respect basic human rights.6 Utilizing a diverse, often uncoordinated, and sometimes inconsistent,7 combination of diplomatic measures, including the withdrawal of economic aid and financial support to Burma, national governments and international organizations have attempted to pressure the SPDC into reform.8 In the United States, for example, President Clinton imposed U.S. unilateral economic sanctions on Burma, which have remained in place since 1997.9 Additionally, U.S. municipal governments introduced and IMAGE FORMULA10

enacted their own sanctions, including a 1996 Massachusetts law that imposed sanctions on companies doing business in Burma.10

Despite an environment of activism and heightened public awareness of the human rights abuses in Burma, a suit brought by U.S. businesses challenging the constitutionality of the Massachusetts sanctions met with success in the lower federal courts.11 In a case capturing all elements of competing constitutional values-- federalism, supremacy, policy values, the international human rights movement, and free trade-the U.S. Supreme Court affirmed, finding the Massachusetts sanctions unconstitutional.12

Proponents of the sanctions argued that their right to free speech and states' rights,13 combined with their humanitarian motives, should prevail over the Constitutional constraints that might otherwise limit the role states may undertake in foreign policy matters.14 Further, they argued that the subfederal South African anti-apartheid sanctions, the model for the Massachusetts Burma sanctions, prompted the enactment of the federal and multilateral sanctions against the apartheid regime in South Africa,just as the Massachusetts Burma Law preceded federal sanctions by three months.15 Indeed, as Justice Brandeis proclaimed in his famous Ice House dissent of 1932, "[i] t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."16 IMAGE FORMULA12

Recent developments in U. …