Paris versus Philadelphia: America Has a Cheerful Understanding of Nationalism Expressed through Democracy. Europe Has a Horror of Popular Nationalism
Will, George F., Newsweek
Byline: George F. Will
America's thinking about its engagement with the world is being bedeviled by the insistent asking of the wrong question, which is: how can we close the rift with Europe caused by the Bush administration's "unilateralism," which betokens wariness about international institutions and international law? The right question is: do we really want to close this rift?
It reflects fundamental differences between American and European understandings of constitutional democracy. So argues Jed Rubenfeld in a mind-opening essay forthcoming in the Wilson Quarterly.
Rubenfeld, a Yale Law School professor, wonders why America--which after 1945 was the principal progenitor of today's system of international organizations and law, including the United Nations--has come to be regarded as hostile to that project. His answer is that Cold-War unity between America and Europe disguised what is now patent: diametrically opposed American and European views of the objectives of international law and organizations.
The American objective is to spread the American understanding of constitutionalism. It is democratic constitutions arising from the particularities of each nation's politics, and construed by national judiciaries informed by their nation's political and legal cultures. The American understanding, exemplified by the Philadelphia convention of 1787 and the ratifying conventions, was that constitutions are political, subject to some evolution via construing--and also, of course, to amendment.
We lose sight of how remarkable the amendment provision is: the men in Philadelphia knew that theirs was not necessarily the final word. A corollary of this philosophical tentativeness is that other democratic nations might come to different conclusions about fundamental rights.
The European embrace of international arrangements in the second half of the 20th century has been a recoil from the savagery of European history in the first half. Whereas America has a cheerful understanding of nationalism expressed through democracy, Europe has a horror of popular nationalism. Having witnessed democratic enthusiasm for the march into the 1914-1918 abyss, and having seen democratic processes produce Mussolini and Hitler, Europe sought an international constitutionalism in the spirit of the Enlightenment philosophers of 18th-century Paris.
American constitutionalism speaks, as it were, with a Philadelphia accent, in what Rubenfeld calls the language of popular sovereignty: "We the people of the United States... do ordain and establish. …