Shadow Government

The Constitution is not a policy football

By Philip Zelikow The Bolton/Yoo essay that Dan Drezner mentions here argues that the 2/3 requirement is a good thing, because it advances their preferred policy agenda by: (a) restraining those wet "global governance" types from entangling commitments; and (b) in particular should raise the bar to ratification of an energy/environment treaty that is a successor to Kyoto. ...

By Philip Zelikow

The Bolton/Yoo essay that Dan Drezner mentions here argues that the 2/3 requirement is a good thing, because it advances their preferred policy agenda by: (a) restraining those wet "global governance" types from entangling commitments; and (b) in particular should raise the bar to ratification of an energy/environment treaty that is a successor to Kyoto.

Fortuna’s wheel has turned far indeed on the day we watch John Yoo take the floor to argue in favor of the prerogatives of the Congress. But, as the policy arguments make clear, Bolton and Yoo’s argument does not have credibility as an impartial defense of constitutional prerogatives. And — as they know — the murky terrain of how to distinguish treaties from executive agreements is not, cannot be, mapped in such a short piece.

Their argument is a perfectly respectable way of giving the conservative right a fresh set of talking points and framing devices for leveraging their reduced minority in opposing liberal internationalism. Since I actually think that, in a globalized world, global frameworks are an essential enabler of national autonomy (and a threat too … it depends), I don’t share their reflexive bias.

So the real issue in their essay is whether you are on their side of the policy argument. If so, you’ll like any port in a storm.

That’s why their essay is just as likely to be counterproductive. If constitutional arguments are just instruments in a policy argument, the other side is invited to adopt a reciprocal point of view.

Well … they have more votes. Defenses against majoritarian tyranny require more credible invocations of principle.

Philip Zelikow is the White Burkett Miller Professor of History at the University of Virginia. He is also a former government official, having held posts in five previous administrations.

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