I previously discussed why I believe that the American revolution is only half-complete. In my opinion, a government consistent with the principles and premises of the American revolution would not have the constitutional right to go to war. Such a government would also not be authorized to treat any foreign persons in any manner except one which is consistent with the normal constitutional protections granted to citizens.
How would such a government defend the rights of its citizens abroad, or redress grievances with foreign powers? The answer is arbitration.
A traditional European state could go to war, or else negotiate on behalf of its subjects. However, my theoretical “complete” American government would not be in a position to arbitrarily bargain concerning the fate of its citizens.
If a foreign entity committed a crime against an American citizen, then that entity’s guilt would be precisely determined by the system of law extant in America. The hypothetical American government here is not in the position of the sovereign of a Euro state – it can’t simply bargain for its prerogatives which may or may not reflect the outcomes of domestic legal processes. This American government’s only constitutional option is to try and convince foreign powers to accept the legitimacy of American legal outcomes, possibly the activities of American foreign agents executing the law abroad such as they would domestically, or at least find some common legal standard to resolve the dispute in question.
There is no bargaining over outcomes, but instead over processes. The mode of arbitration (for example the judges in question) can be selected specifically with outcomes in mind, but the purpose of arbitration is to take two dissonant legal systems of two foreign powers and to harmonize them. In this, neither state’s prerogative is being asserted, or if it is it is brought under the contextual umbrella of that state’s existing legal norms. When we speak of liberal government, reflective of American revolutionary principles, we speak of the rule of law trumping the rule of men.
By using arbitration, a government such as America’s could act in the international realm in a manner more consistent with how it acts in the domestic realm. The principle, “all men are endowed by their creator with certain inalienable rights,” can exist above and beyond the scope of the American state, rather than be subordinate to it.
Nevertheless, this only answers the very basic procedural question of how a “1776” style government would deal with international disputes in contrast to the traditional European/Westphalian manner. Tomorrow I will address whether this procedure would be effective, realistic, or competitive in the real world of international disputes.
