Globalization and the Future of Constitutional Rights

Article excerpt

I. INTRODUCTION.................... 1278

II. THE RELEVANCE OF GLOBALIZATION TO CONSTITUTIONAL LAW........................ 1284

III. THE IMPACT OF GLOBALIZATION ON DOMESTIC LAW: FIVE COMPETING HYPOTHESES.................... 1289

IV. EMPIRICAL TRENDSIN GLOBALIZATION AND THE PROTECTION OF CONSTITUTIONAL RIGHTS .................... 1298

A. Globalization.................... 1299

B. Property Rights.................... 1302

C. Civil Liberties.................... 1304

D. The Correlation Between Globalization and Constitutional Rights: Causation or Coincidence?.................... 1306

V. CONSTITUTIONAL COMPETITION FOR INVESTMENT CAPITAL ............................... 1307

A. The Positive Effect of Competition for Capital on Property Rights.......... 1308

B. Practical Limits on a "Race to the Top" in Property Rights.................... 1311

C. The Positive Effect of Competition for Capital on Human Rights............. 1313

D. Explanations for the Compatibility of Foreign Investment and Human Rights.................... 1317

VI. CONSTITUTIONAL COMPETITION FOR HUMAN CAPITAL.................... 1321

A. The Positive Relationship Between Human Rights and Human Capital... 1321

B. The Problem of Labor Mobility: A Tale of Two Tiers............................... 1323

C. Elite Workers and the World Market for Human Rights........................... 1330

D. Elite Worker Preferences and the Market Demand for Human Rights..... 1334

E. Constitutional Apartheid: A Double Standard for Elite Workers?............ 1340

VII. CONCLUSION.................... 1343

I. INTRODUCTION

There is one word today with the power to unleash mass protest in the streets of Seattle, Genoa, and Hong Kong.1 That word is globalization. Definitions of the term vary, but it typically refers to both a process of change and a resulting set of conditions2: it is a process by which "technological, economic, and political innovations ... have drastically reduced the barriers to economic, political, and cultural exchange,"3 resulting in not only "increasing transnational flows and increasingly thick networks of interdependence,"4 but also an expansion of the "scale on which power is organized and exercised."5 For some, globalization promises peace and prosperity on an unprecedented scale; for others, it portends injustice, inequality, and the demise of community and self-government.6 Across the political spectrum, it evokes a sense that largely uncoordinated action by faceless actors is changing political, social, and economic life in ways that we have yet to realize and that we cannot prevent. In short, it is a word coined to describe a future that we have created yet cannot fully control.

There can be little doubt that changes of this magnitude in the global order will influence the development of constitutional law.7 The question is how? Yet the subject of globalization has barely penetrated the consciousness of constitutional scholars in this country.8 The notable exception in this regard has been a torrential outpouring of literature on the propriety of judicial citation to foreign law,9 prompted by the Supreme Court's use of foreign authority in a recent string of controversial cases.10 Judicial use of foreign law is not, however, an isolated phenomenon rooted in the demands of constitutional adjudication or in the character of legal reasoning. It is, rather, an unsurprising byproduct of globalization: it has been encouraged by advances in transportation and communication, and by the deepening of political, economic, cultural, and legal ties, that have made it easier for all varieties of people-including judges-to interact with their foreign counterparts, and for all varieties of ideas-including jurisprudential ones-to travel across borders." Viewed in proper perspective, the citation practices of a handful of judges are but a tiny fraction of much greater developments that lie well beyond judicial control yet threaten to have a tremendous impact on the worldwide evolution of constitutional law. …