Balkinization: The United States and the United Nation

The United States and the United Nation

Sandy Levinson

Assume for the purposes of this posting that you, the reader, actually care about preserving the United Nations as an effective forum of international discussion and, on occasion, decisionmaking with regard to a variety of important issues. (If you hate the UN, as does John Bolton, then you won't find what follows of particular relevance.)

So, if you are willing to grant the assumption, isn't it obvious that anyone concerned about the UN must confront the ways that it is ill designed to achieve its quite inspiring purposes as set out in 1945? The most obvious example is the design of the Security Council and the current veto system, which is based entirely on "great power status" as measured in 1945: US, USSR, UK, France, and China. One doesn't have to be a Francophobe to wonder why France retains the veto power in 2007 (assuming the desirability of a veto power at all). One might even ask the same question about the UK, if truth be known. It's easy enough to defend the US, Russia, and China as veto-holders, but, obviously, one can name a number of other countries that might also qualify, especially if one doesn't strip the UK or France of its power: Germany, Japan, India, Brazil, for starters. We could also talk about the one-state/one vote system in the General Assembly. For someone who is critical of the US Senate and its maldistribution of voting power, it is hard indeed to figure out why one would support Fiji's having the same voting power as the United States or China, unless one is what might be termed a "sovereign state formalist" totally indifferent to the realities of population, resources, etc., etc., etc. Frankly, I see no more reason to support that at an international level than at the more local level of the US, though, no doubt, some of you would argue that there is a dispositive difference. I'd be genuinely interested to read such arguments.

In any event, the point is obvious: No one would consider it amiss to suggest that the UN should be subject to rational assessment with regard to its basic design, and one could be acknowledged as a "friend" of the UN even while calling for quite significant revisions of the 1945 Charter. So why is it that "we" (in this case the US populace or even what political scientists used to call "attentive publics," and not simply the readers of Balkinization) are having no serious discussion about the deficiencies in our own Constitution? Is it simply that we "venerate" the latter, while no one "venerates" the UN Charter? Is it that most people are so scared of popular democracy in the US that we prefer the devil we know (but never actually admit has devilish features) to what we fear might eventuate from a serious open discussion?

Oh, and by the way, George W. Bush, if he does not choose to leave the White House, will have 737 more days to enjoy all of the legal power granted the President of the United States. I confess that I am increasingly frustrated by the failure of any mainstream pundit, many of whom are as easily anti-Bush as I am, to note the constitutional origins of our present political crisis. Everything is reduced to pure politics, especially the runup to the 2008 election, with no attention being paid to the way that the Constitution indeed successfully structures our political order, for goood (at times) and, most definitely, for ill (at other times). There are many critics of the tendency of the press to turn all politics into "horseraces," with the main issue being who is ahead and who is coming up on the outside rail. But even horseraces are constituted by some very definite rules that structure possible outcomes.

Posted 3:58 PM by Sandy Levinson [link]

Comments:

I write a syndicated column for Scripps Howard, and I've been planning to devote a column to your criticisms in this vein. (I want to finish your book first).

Also, there has been some mainstream criticism of flaws in the constitutional order recently. I'm thinking in particular of a couple of things Jonathan Chait of TNR and the Los Angeles Times has written in the past few months about the undemocratic nature of the Senate, and the anachronism of the electoral college.

But as you know heterodox complaints about civil religions have a lot of cultural baggage to overcome.

# posted by

Anonymous : 4:53 PM

I agree that veneration of our Constitution and the lack thereof towards the UN charter explains much of the differing attitudes.

I would add though that many people consider the US Constitution to both generally work as intended and to, generally speaking, contain the appropriate "definite rules."

If its close to impossible for reform to happen to the UN charter (which many agree is horribly and fundamentally flawed), is it really any wonder that its hard to reform our Constitution?

# posted by

humblelawstudent : 4:55 PM

I think another structural flaw of the 1945 Charter is that the document itself discourages its own veneration. By design, the Charter operates behind an endless series of filters and bureaucratic morass, very far removed from global popular opinion. Indeed, the UN is often used more as a tool of powerful governments to maintain and expand their influence, rather than any vehicle for positive change.

It's certainly not the idea of an international 'constitution' per se that lacks popular support, but a legitimate gripe about the very purpose of such a document. The UN's Universal Declaration of Human Rights is (arguably) 'venerated', so perhaps an updated Charter that more closely responds to global public opinion might be held in similarly high regard.

# posted by

BM : 6:13 PM

For the record, I should note that the LA Times and Boston Globe have given me access to its pages to offer some of my critique, as has the New Republic. I hadn't seen Chait's column, which I lok forward to seeing. I suppose that the focus of my frustration (which, to be sure, may strike some of you as sheer whining :)) is that neither Frank Rich nor Paul Krugman, certainly the two most severe critics of Bush in the MSM, has even mentioned the Constitution. Given Maureen Dowd's particular style, I'd be somewhat surprised if she turned to such issues.

Although I disagree with those who find our present Constitution adequate, I am not so egoistic as to believe that my view is the only legitimate one. So long as that conclusion is reached after confronting the criticisms that can be made of the Constitution, I have no beef. It is the "unthinking veneration" that sends me up the wall, not the existence in the world of those who disagree with me about the Senate, Electoral College, etc. Indeed, the Penn Law Review internet site will shortly be publishing a debate between Dan Lowenstein (UCLA), John McGinnis (Northwestern), and myself on the Electoral College in which I presume the best possible arguments for the College will be set out by these distinguished members of the legal academy.

# posted by

Sandy Levinson : 6:15 PM

Professor Levinson:

I'd be genuinely interested in read such arguments.

If the UN was ever intended to be a world government, rather than an exceedingly expensive and corrupt debating society, then the compromises between the large and small states as well as the federal and state governments we arrived at in our Constitution may actually be the only way to get the nations of the world to join.

If votes in a UN world government were only proportional by population, then a small cluster of countries, like say China, India and Brazil, would be running things while the smaller countries would have no say at all. Why then would all the smaller countries join such a government?

Moreover, if a strict federalist approach were not followed, then we in relatively libertarian countries like the United States could quickly lose our freedoms to a world government run by blocks of countries like China, the USSR and the Islamic countries.

So why is it that "we" (in this case the US populace or even what political scientists used to call "attentive publics, and not simply the readers of Balkinization) are having no serious discussion about the deficienies in our own Constitution?

Because, apart from our Civil War, the Constitution has worked amazingly well. The government routinely and generally without violence changes hands between the two parties through popular elections. To a large extent, I believe that is due to the fact that the structure of the government has so many checks and balances that an effective super majority of opinion is required to enact any fundamental changes. This keeps a single block based on population or geography from routinely running the government and shutting the rest of the country out.

# posted by

Bart DePalma : 6:16 PM

I know it is not the main topic of this post, and if someone else has already brought this up then I'm sorry, but I've been reading this blog for a while and I'd like to know if you would be criticizing the Constitution (namely the Senate) as much if it was the Democrats that were benefiting from it. I have no problem with people who don't like the President, but I think it's easy to complain about the process when the outcome isn't what you wanted.

# posted by

Anonymous : 6:23 PM

I agree with you about the UN, but (as you know) disagree about some aspects of the Constitution. It's that "some" which I think makes all the difference. The Constitution is not perfect, but the UN Charter is an outright disaster. The former needs reform, the latter needs repeal and reconstruction.

Having said that, it's important to remember that the Constitution establishes an actual government. People can argue about the purpose and function of the UN, but no one thinks it's a government. The structure we adopt for one does not and should not control our choice for the other.

# posted by

Mark Field : 6:38 PM

"Bart" DePalma said:

If the UN was ever intended to be a world government, rather than an exceedingly expensive and corrupt debating society,...

Fallacy of bifurcation, of course...

...then the compromises between the large and small states as well as the federal and state governments we arrived at in our Constitution may actually be the only way to get the nations of the world to join.

At least "Bart" sees the paralleles between, e.g., our Senatorial and federalist system, and the U.N. structure....

If votes in a UN world government were only proportional by population, then a small cluster of countries, like say China, India and Brazil, would be running things while the smaller countries would have no say at all. Why then would all the smaller countries join such a government?

Depends on what it's supposed to do. "One World Government" is not what it's supposed to do, despite the lies of the RW on this....

... Moreover, if a strict federalist approach were not followed, then we in relatively libertarian countries like the United States could quickly lose our freedoms to a world government run by blocks of countries like China, the USSR and the Islamic countries.

And? What does this have to do with the price of tea in Sri Lanka?

So why is it that "we" (in this case the US populace or even what political scientists used to call "attentive publics, and not simply the readers of Balkinization) are having no serious discussion about the deficienies in our own Constitution?

Because, apart from our Civil War, the Constitution has worked amazingly well. The government routinely and generally without violence changes hands between the two parties through popular elections. To a large extent, I believe that is due to the fact that the structure of the government has so many checks and balances that an effective super majority of opinion is required to enact any fundamental changes. This keeps a single block based on population or geography from routinely running the government and shutting the rest of the country out.

"Bart" is still tilting at the windmills of his mind about "One World Government".

While the U.S. Constitution and the U.N. Charter have some similar characteristis and some similar shortcomings, their purpose is far from identical. Because fo this, it's perfectly conceivable that the solutions to the shortcomings and/or inefficiencies may well be different. By treating them as one and the same in purpose, "Bart" just doesn't want to look seriously at how the U.N. can and/or should be changed to more effectively address its purposes.

Cheers,

# posted by

Anonymous : 2:02 PM

regarding your comments on the united nations: while it's true that it appears to make little sense for large and small states alike top have equal voting rights at the general assembly, this formal equality is designed to reflect the de jure if not de facto equal sovereignty of all states, as codified in the uno's charter. along with the articles and provisions on non agression, formal equality provides a minimum guarantee to small (and presumably weak) states when faced with the potential predatory policies of strong states. in other words, it is designed to obviate enormous power differentials and to "tame" power, at least to the extent that law can tame power. having said that, there are all kinds of good reasons to restructure the UNO system and to democratize it further. on a normative level, i would argue that this must involve not merely reorganization reflecting new and powerful emerging actors such as India or Brazil, but moves towards transnational governance and institutionalized cooperation that effectively curb the power maximizing strategies of nation states. Utopian, perhaps. But post hegemonic cooperation in europe since 1945 is a good example of where we could go.

Philip Golub, University of Paris 8

# posted by

Anonymous : 2:40 PM

"formal equality provides a minimum guarantee to small (and presumably weak) states when faced with the potential predatory policies of strong states."

This seems impossible unless formal equality applies to both the Gen. Assembly AND the Security Council. I think this means no veto power, as no 'minimum guarantee' against aggression is possible so long as powerful (and sometimes aggressive) countries hold disproportionate power. Suppose, at some future time, one of the large, powerful countries goes berserk and starts attacking smaller countries, threatening others and posing a genuine threat to world order. Since that country has a veto, the UN is rendered impotent--in all likelihood, on the sidelines until the conflict is over.

However, if formal equality is the standard, then shouldn't the membership of the UN reflect more than 191 viewpoints? Most armed conflicts are now internal, so of what use is the UN to, say, the Kurds who, because of a 1918 treaty between Britain and Turkey, lack a voice at the UN. The UN's membership can't legitimately protect people's right to self determination if they don't recognize that right in its voting bodies.

# posted by

BM : 6:17 PM