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The United States is sometimes praised, both within its borders and around the world, for its support for human rights. But it is just as frequently criticized for its rejection of certain international human rights norms. Can these complex and seemingly contradictory positions be reconciled? In what ways does the United States make an exception of itself and with what consequences? American Exceptionalism and Human Rights seeks to explain “the paradox of being simultaneously a leader and an outlier” in terms of American human rights behavior.
The book features essays by ten scholars from the fields of international law and international relations, who presented earlier versions of their essays at a year-long lecture series at Harvard University’s John F. Kennedy School of Government. Editor Michael Ignatieff organizes the essays under three themes: “The Varieties of Exceptionalism,” “Explaining Exceptionalism,” and “Evaluating Exceptionalism.”
Ignatieff begins the introductory essay by naming three types of American exceptionalism. He points to exemptionalism as the practice of supporting international conventions and treaties but only with exemptions, signing treaties but refusing to comply with the terms, or negotiating agreements but then failing to ratify them. Exceptionalism can also take the form of double
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standards, where the United States uses a different rule for itself than it does for others, or a different rule for friends than foes. Finally, legal isolationism refers to judicial resistance to foreign law. Ignatieff introduces various explanations for exceptionalism—realist, cultural, institutional, and political—and concludes that the political explanation, the relative strength of American conservatism, is the most compelling. He writes, “current American exceptionalism . . . is fundamentally explained by the weakness of American liberalism.”
Ignatieff raises two questions that become lines of inquiry running through the essays. First, is American exceptionalism a temporary or a long-term phenomenon? Second, are the consequences of American exceptionalism good, bad, or both? In addressing the questions, he presents three competing perspectives—nationalist, realist, and liberal internationalist. Here, he appears to favor liberal internationalism, but he expresses doubt that the American people will support the conception of the United States as a “benevolent superpower voluntarily restricting its sovereignty for the sake of the greater global good.” Ignatieff concludes by noting the implications of an American refusal to engage in discourse that reaches across national boundaries. He warns: “The critical cost that America pays for this exceptionalism is that this stance gives the country convincing reasons not to listen and learn. Nations that find reasons not to listen and learn end up losing.”
Following Ignatieff’s introduction, three chapters focus on particular policy positions that make the United States exceptional in terms of its divergence from the international norm: Frederick Schauer examines the First Amendment’s protection of freedom of expression, Carol Steiker considers possible explanations for the continuation of capital punishment, and Cass Sunstein discusses the lack of social and economic guarantees in the Constitution. Interestingly, both Steiker and Sunstein credit the change in the Supreme Court following President Nixon’s election with the resultant “exceptional” policies. This historical contingency explanation suggests the possibility of changes in the future. This question is taken up by other contributors.
Harold Koh takes a more pointed stance in his essay, “America’s Jekyll-and-Hyde Exceptionalism,” discussed at length here because it serves as a helpful guide to the key themes raised by other contributors. While critical of American exceptionalism, especially the so-called Bush Doctrine, Koh is careful to note that exceptionalism has both good and bad faces. After discussing problematic consequences of double standards, which Koh considers the “most dangerous and destructive” form of exceptionalism, he describes the concept of exceptional global leadership. Calling on the United States to put forth its “best face” through the promotion of the rule of law, Koh writes: “American exceptionalism succeeds best when it seeks not simply to coerce but, rather, to promote sustainable solutions through the generation of legal process and internalizable legal rules.”
Koh concludes that public and private actors outside the U.S. government are well-positioned to “trigger transnational legal process[es]” that can initi-
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ate change. His point here, focusing on the increasingly important influence of informal actors, is echoed by several other contributors. The view shared by these writers is, therefore, that American exceptionalism is a time-limited phenomenon, at least in its current form. Stanley Hoffmann, Anne-Marie Slaughter, and John Ruggie each emphasize the “unavoidable momentum” of globalization and predict an erosion of exceptionalist positions, even in areas where historically the United States has been most resistant. Ruggie describes how the “reconstituted global public domain,” which involves states plus other actors and interests, makes it harder if not impossible for a state, even one as powerful as the United States, to remain exceptionalist. Paul Kahn’s essay offers a contrast here. He criticizes liberal internationalists for their attempt to substitute human rights for “state sovereignty and the irreducible quality of the political.” In his opinion, such efforts cannot succeed because they fail to recognize the state as a self-interested being.
Most contributors are critical of American exceptionalism insofar as it supports a double standard. The evaluation of this negative impact is focused, somewhat surprisingly, more on the effect of exceptionalism on the United States than on the rest of the world. Andrew Moravcsik’s essay helps make sense of this focus. He argues that America’s exceptionalism simply does not have a significant impact on international actors directly. Instead, the United States is the primary recipient of any negative consequences, making American citizens the real “winners and losers.” Slaughter’s evaluation of judicial resistance to foreign law also focuses on its impact on the United States. In her opinion, the real problem is uninformed divergence, or the resistance to “cross-fertilization,” regardless of the merits of the argument. Frank Michelman posits the interesting idea that the judiciary’s consideration of international legal precedent may actually help strengthen the U.S. legal system by restoring faith in American judicial objectivity.
The take-away lesson from this important and timely book is that any single explanation or evaluation of American exceptionalism is complicated and likely incomplete. The strength of American Exceptionalism and Human Rights lies in the very fact that the pieces of the puzzle do not necessarily add up to a uniform picture. One thing is clear, however: the trend toward globalization will continue to evolve in new and significant ways, making the American response to international human rights norms even more critical, perhaps most importantly for the United States itself.
—Colette Connor
HLSHRJ@law.harvard.edu
This file was last modified:
Wednesday, 27-Sep-2006 09:31:24 EDT