I. THE NEW SOVEREIGNTY1
The recent surge of interest in sovereignty, exemplified by this symposium, reflects the empirical reality of 21st century international relations. There are more multilateral agreements and more multilateral institutions addressing more areas of policy than ever before. While debates over the extent to which the current era is truly the high-water mark for interdependence exist,2 it is the degree and nature of the linkages between previously domestic policy and international law and institutions that are noteworthy, and that have sparked, across the political spectrum, concern with global governance and its implications for sovereignty.
As Stephen Krasner's excellent new book makes clear, sovereignty has always been a plastic norm in practice. As a concept it is used in varying ways and to denote different things.3 The motivating question behind most thoughtful discussions of the impact of global governance on United States sovereignty is not whether institutions such as the World Trade Organization ("WTO") somehow have seized US decisionmaking powers.4 This notion of sovereignty-sovereignty as formal control-is not seriously in doubt. The important question is instead a subtler one: whether the development and expansion of multilateral institutions are systematically altering our customary modes of domestic law and politics. Put differently, the question is: have we delegated away a significant part of our capacity for, and manner of, selfgovernment in the process of international cooperation?
In his article5 in this symposium, John McGinnis turns this question on its head. The true threat to sovereignty, he argues, is precisely our customary modes of law and politics. Contemporary American politics, which McGinnis understands through the lens of public choice theory, is naked interest-group politics. Interest groups compete to use the state as a vehicle for rent-seeking and for imposing their normative visions, and attendant policies, on the majority. In this the few and well-organized benefit at the expense of the many. (The reverse presumption, as many have noted, of Footnote 4 of Carolene Products.)6 Rent-seeking by discrete interest-groups was aided by the advent of the New Deal and the rise of the 20th century bureaucratic regulatory state. McGinnis argues it is now further extended and reinforced by the expansion of international law and institutions. Rather than global governance per se, it is the tyranny of faction and the pervasiveness of rent-seeking and redistribution-often in the form of economic protectionism-which is in fact the major threat to our sovereignty.
Against this threat the WTO and its norm of non-discrimination acts as an exemplary bulwark. Echoing Tum-lir,7 Hudec,8 and others, McGinnis argues that, far from threatening sovereignty, multilateral free trade agreements act to protect sovereignty properly understood. The WTO polices and checks rent-seeking policies at the domestic level, vindicating the (often unexpressed) will of the majority.
McGinnis' particular contribution to this line of thought is to link the rentseeking/sovereignty argument to contemporary concerns about the growing ambit of international law. He argues that other multilateral efforts, such as environmental or human rights agreements, lack the democracy-enhancing qualities that free trade agreements such as the WTO possess. Indeed, most forms of multilateralism are highly suspect because they have the opposite qualities-they enhance not democracy but the power of the state and therefore of special interests. They represent and promote the extension of that power to the global level. As a result, he suggests, the proper conservative view of multilateralism should be discriminating, not dismissive. Trade multilateralism should be favored and other types of multilateralism disfavored, and this preference mix is not simply reflexive but principled.
I want to commend McGinnis for making this argument, which, though deeply flawed in my view, is also engaging on many levels. …