Foreword: On American Exceptionalism
Koh, Harold Hongju, Stanford Law Review
INTRODUCTION I. UNPACKING "AMERICAN EXCEPTIONALISM" II. THE OVERLOOKED FACE OF AMERICAN EXCEPTIONALISM III. RESPONDING TO AMERICAN EXCEPTIONALISM: THE BUSH DOCTRINE AFTER SEPTEMBER 11 A. Four Responses B. The Emerging Bush Doctrine C. Addressing Exceptionalism Through Transnational Legal Process 1. The global justice system 2. 9/11 detainees 3. Use of force in Iraq CONCLUSION
Since September 11, "American Exceptionalism" has emerged as a dominant leitmotif in today's headlines. I propose first, to unpack precisely what we mean by American exceptionalism; second, to clarify both the negative and the overlooked positive faces of American exceptionalism; and third, to suggest how we, as American scholars and lawyers, should respond to the most negative aspects of American exceptionalism in the wake of September 11.
By so saying, I directly address the focus of this Stanford Law Review Symposium on Treaties, Enforcement, and U.S. Sovereignty: whether and when the enforcement of international treaties against the United States affronts U.S. sovereignty. For if one uses "sovereignty" in the modern sense of that term--a nation's capacity to participate in international affairs (l)--I would argue that the selective internalization of international law into U.S. law need not affront U.S. sovereignty. To the contrary, I would argue, the process of visibly obeying international norms builds U.S. "soft power," enhances its moral authority, and strengthens U.S. capacity for global leadership in a post-September 11 world. (2)
I. UNPACKING "AMERICAN EXCEPTIONALISM"
Let me begin with the words of University of Toronto historian Margaret MacMillan:
American exceptionalism has always had two sides: the one eager to set the world to rights, the other ready to turn its back with contempt if its message should be ignored.... Faith in their own exceptionalism has sometimes led to a certain obtuseness on the part of Americans, a tendency to preach at other nations rather than listen to them, a tendency as well to assume that American motives are pure where those of others are not.... (3)
The event: the Paris Peace Conference of 1919. The President: Woodrow Wilson, obsessed with his Fourteen Points and his ultimately unsuccessful fight to promote United States entry into the League of Nations. The point: When it comes to American exceptionalism, there is really nothing new under the sun. Whether pressing for or against multilateral action, in the twentieth century or the twenty-first, Americans generally tend to strike the world as pushy, preachy, insensitive, self-righteous, and usually, anti-French.
While this "Obtuse American" angle is easy to parrot today, on closer inspection, the reality of American exceptionalism emerges as considerably more multifaceted. Over the centuries, the concept of "American Exceptionalism" has sparked fierce debates in both the academic and political realms. (4) Yet during the last fifteen years, I have had the chance to look at American exceptionalism from both sides now: not just from the perspective of the academy and the human rights world, but from two very distinct perspectives within the human rights arena: on the one hand, as a human rights scholar and nongovernmental advocate; on the other hand, as a U.S. government official. During my five years in the government--half in the Reagan Administration as a Justice Department lawyer and half in the Clinton Administration as Assistant Secretary of State for Democracy, Human Rights, and Labor--I have been asked to wear two hats: to serve as America's plaintiff's lawyer in cases where the United States holds a human rights grievance, as well as its defense lawyer when the United States has been charged with human-rights abuse. Both before and after my time in government, I spent considerable time suing the U. …