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70 U. Colo. L. Rev. 1277 (1999)
Are We to Be a Nation - Federal Power vs. States' Rights in Foreign Affairs

handle is hein.journals/ucollr70 and id is 1299 raw text is: ARE WE TO BE A NATION? FEDERAL POWER VS. STATES' RIGHTS IN FOREIGN AFFAIRS MARTIN S. FLAHERTY** INTRODUCTION Ten years ago the United States won the Cold War. In the words of President Bush, America had at last vanquished the evil empire and now could create a new world order.' The long battle against communism did much to sustain the strong national government forged during the New Deal and the Sec- ond World War. Internationally, the expansion of federal power transformed the nation into the world's leading, and in the end only, superpower. On the domestic front, the legacy has been more mixed.2 Few thoughtful observers, however, would dispute that at least one windfall of Cold War national- ism was to strengthen the federal government's hand in com- bating a range of regional embarrassments, not least state-sanctioned racism.3 Yet with victory comes spoils. The old habit of rallying 'round the flag has more and more given way to various re- treats to isolationism.4 This is no less true in constitutional * Cf. RICHARD B. BERNSTEIN & KIM RICE, ARE WE TO BE A NATION? THE MAKING OF THE CONSTITUTION (1987). ** Associate Professor & Co-Director, Joseph R. Crowley Program in Inter- national Human Rights, Fordham Law School; Visiting Professor of Constitu- tional Law at China University of Political Science and Law and at the National Judges College, both in Beijing. My thanks to Curtis Bradley for reading an ear- lier draft from a critical perspective. 1. See George C. Wilson, Operation Highlights Weaknesses of U.S. Forces, WASH. POST, Feb. 10, 1991, at A23. 2. Cold War era attacks on civil liberties, especially by the federal govern- ment, offer the most obvious examples. See, e.g., MARK TUSHNET, CENTRAL AMERICA AND THE LAW: THE CONSTITUTION, CIVIL LIBERTIES AND THE COURTS 45-58 (1988) (describing assaults on constitutional liberties related to foreign af- fairs concerns). 3. See Derek Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 524-25 (1980). 4. See, e.g., Gerald L. Neuman, Sense and Nonsense About Customary Inter- national Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 385 (1997) (commenting on U.S. resistance to international human rights norms); Peter J. Spiro, The States and International Human Rights, 66

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