Abstract
This chapter examines American populism in relation to international law with a focus on the administration of Donald Trump. While populism has been a regular influence in American political life, it has not always been overtly hostile to international legal norms in the fashion of the present administration. Earlier forms of populism (such as those of William Jennings Bryant and George Wallace) opposed political and economic elites but were not overtly hostile to international norms. Rather, the current populist movement is not exclusively anti-elitist in the fashion of traditional populism but is rather better understood as a form of political paranoia. By defaulting to the posture that international laws are contrary to American interests, the Trump administration has effectively cast doubt on all international agreements and obligations that were not ratified by the president himself. Such a paranoid disposition better characterizes and explains the administration’s international legal posture than does either traditional anti-elitist populism or traditional conservative realism and exceptionalism.
Aaron Fichtelberg is an Associate Professor in the Department of Sociology and Criminal Justice at the University of Delaware, Newark, DE, USA.
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Notes
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- 10.
The Trump administration is unique in US history insofar as its political agenda is highly dependent upon the personality and conduct of its idiosyncratic leader. As political observers have noted, this administration does not center on a political doctrine, ideology, or agenda but often chases the whims of its master (D Smith, How Trump captured the Republican party, The Guardian, 10 June 2018, https://www.theguardian.com/us-news/2018/jun/09/donald-trump-republican-party, accessed 14 March 2019). This means that, throughout this analysis I will be using the term “Trump”, “Trumpian”, and “Trump” administration interchangeably. While there are significant principle-agent problems that develop in such a situation as policymakers seek to influence or undermine the President’s largely inchoate agenda, nonetheless this administration is a creature of its leader far more than most (J Cost, Trump Should Be a Better Boss, The National Review, 10 September 2018, https://www.nationalreview.com/2018/09/president-trump-should-be-better-boss-new-york-times-anonymous-op-ed/, accessed 14 March 2019). While structural forces shape the behavior of states, the personality of political leaders do too, particularly when the leader commands the deep loyalty of his party and her electoral grass roots (Birt 1993; Lasswell 1976) Fusing the administration, the state, and the predilections of their leader is essential to effectively understand the current state of US international legal policy, without oversimplifying the relationship between states, leaders, and international relations more broadly. At the end of the chapter, I will discuss the problems that such a close linkage between leadership and policy creates for the administration.
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Mudde 2004, at 543.
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Fuchs and Klingemann 2014.
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Mudde 2004, at 542.
- 14.
There are several other figures that have populist elements including Theodore Roosevelt, Huey Long, and Father Charles Coughlin. This is primarily because Jackson, Bryan, Wallace, and Trump each represent a departure from the prevailing political ideologies of the time and in favor of an avowed anti-ideological populism. For a more in depth history of American populism see: Stirewalt 2018.
- 15.
Hofstadter 1955.
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Lowndes 2005.
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N French, Trump violates core conservative values, yet most conservatives still refuse to condemn him, The Washington Post, 13 October 2017, https://www.washingtonpost.com/news/acts-of-faith/wp/2017/10/13/trump-violates-core-conservative-values-yet-most-conservatives-still-refuse-to-condemn-him/?noredirect=on&utm_term=.04e2d1230f9c, accessed 14 March 2019.
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Hadiz and Chryssogelos 2017.
- 19.
Jacobs and Page 2005.
- 20.
Wiessner 1994.
- 21.
Mead 1999, at 14.
- 22.
Ibid., at 18. It is worth noting that some observers of Donald Trump have seen strains of this form of Jacksonianism in both his domestic and foreign policy. (P Beinart, Trump’s Self-Pitying Aggression, The Atlantic, 19 May 2016, https://www.theatlantic.com/politics/archive/2016/05/the-jacksonian-candidate/483563/, accessed 14 March 2019) Trump himself has spoken highly of Jackson (L Jacobson and S Waychoff, What’s up with Donald Trump and Andrew Jackson?, Politifact, 2 May 2017, https://www.politifact.com/truth-o-meter/article/2017/may/02/whats-up-with-donald-trump-andrew-jackson/, accessed 14 March 2019).
- 23.
Mead 1999, at 18.
- 24.
As Bryan put it in a different speech: “Imperialism would be profitable to the army contractors; it would be profitable to the ship-owners, who would carry live soldiers to the Philippines and bring dead soldiers back; it would be profitable to those who would seize upon the franchises, and it would be profitable to the officials whose salaries would be fixed here and paid over there; but to the farmer, to the laboring man and to the vast majority of those engaged in other occupations it would bring expenditure without return and risk without reward.” Bryan’s notification speech of 1900 (Bryan and Bryan 1900, at 407).
- 25.
Leuchtenburg 1952.
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J Walker, One Candidate Had a Foreign Policy That Anticipated Trump’s, Reason: Hit & Run Blog, 30 August 2016, https://reason.com/blog/2016/08/30/trump-wallace-foreign-policy, accessed 14 March.
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Hofstadter 1989.
- 28.
Hamilton et al. 2014, paper no. 57.
- 29.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
- 30.
Article I, Section 3 of the Constitution originally read, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” It was replaced in 1913 with the 17th Amendment which called for the direct election of Senators.
- 31.
Hamilton et al. 2014, paper no. 52.
- 32.
“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Article II, Section 2.
- 33.
The Paquete Habana, 175 U.S. 677 (1900).
- 34.
Article 1, Section 8 grants the Congress (all together) the rights to “regulate Commerce with foreign Nations”, “establish an uniform Rule of Naturalization,” “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations”, “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” and “make Rules for the Government and Regulation of the land and naval Forces” – all of which could be construed as having international legal import.
- 35.
Schlesinger 2004, at 14.
- 36.
“The immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” (Hamilton et al. 2014, pp. 332–333)
- 37.
Amar 1995, at 143–144.
- 38.
Koh 2004, at 44.
- 39.
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
- 40.
For a lengthy and important analysis of the theory behind the Supreme Court’s incorporation of international law into US law in the context of the Paquette Habana case, see Henkin (1984).
- 41.
The Electoral College has proven to be a toothless bulwark against populist forces – faithfully echoing the popular vote in the states they represent (M. Signer, The Electoral College Was Created to Stop Demagogues Like Trump, Time, 17 November 2016, http://time.com/4575119/electoral-college-demagogues/, accessed 14 March 2019).
- 42.
Greenburg 2008.
- 43.
Schlesinger 2004. Also, it is important to keep in mind that the requirement that the President receive the consent of 2/3 of the Senate for a treaty has led the President to develop alternative sorts of agreements with foreign nations which are much weaker and subject to the whims of different presidents.
- 44.
D Nedal and D Nexon, Trump Won’t Get the Best Deals, Foreign Affairs, 31 January 2017, https://www.foreignaffairs.com/articles/2017-01-31/trump-wont-get-best-deals, accessed 14 March 2019.
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The White House, Statement by President Trump on the Paris Climate Accord, 1 June 2017, https://www.whitehouse.gov/briefings-statements/statement-president-trump-paris-climate-accord/, accessed 14 March 2019.
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T Cama and D Henry, Trump: We are getting out of Paris climate deal, The Hill, 1 June 2017, https://thehill.com/policy/energy-environment/335955-trump-pulls-us-out-of-paris-climate-deal, accessed 14 March 2019.
- 47.
Bellinger 2018.
- 48.
de Wet 2004; J Risen and S Fink, Trump Said ‘Torture Works.’ An Echo is Feared Worldwide. The New York Times, 5 January 2017, https://www.nytimes.com/2017/01/05/us/politics/trump-torture-guantanamo.html, accessed 14 March 2019.
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The Guardian, Donald Trump says he finds Saudi explanation of Khashoggi death ‘credible’, 20 October 2018, https://www.theguardian.com/world/2018/oct/20/donald-trump-says-he-finds-saudi-explanation-of-khashoggi-death-credible, accessed 14 March 2019.
- 50.
The Washington Post, Trump loves human rights – when convenient, 14 November 2017, https://www.washingtonpost.com/opinions/trump-loves-human-rights--when-convenient/2017/11/14/a1f360d8-c97e-11e7-b0cf-7689a9f2d84e_story.html?utm_term=.0acf8b876a74, accessed 14 March 2019.
- 51.
“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”
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R Gramer, Trump Discovers Article 5 After Disastrous NATO Visit, Foreign Policy, 9 June 2017, https://foreignpolicy.com/2017/06/09/trump-discovers-article-5-after-disastrous-nato-visit-brussels-visit-transatlantic-relationship-europe/, accessed 14 March 2019.
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BBC News, President Trump to pull US from Russia missile treaty, 21 October 2018, https://www.bbc.com/news/world-us-canada-45930206, accessed 14 March 2019.
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Trump 2017.
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P Baker, Trump Abandons Trans-Pacific Partnership, Obama’s Signature Trade Deal, The New York Times, 23 January 2017, https://www.nytimes.com/2017/01/23/us/politics/tpp-trump-trade-nafta.html, accessed 14 March 2019.
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A Swanson, Trump’s Tough Talk on Nafta Raises Prospect of Pact’s Demise, The New York Times, 11 October 2017, https://www.nytimes.com/2017/10/11/business/economy/nafta-trump.html, accessed 14 March 2019.
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Irwin 2017.
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Note: Since Posner’s article was published, Trump’s National Security Advisor, John Bolton has attacked the ICC. (O Bowcott et al., John Bolton threatens war crimes court with sanctions in virulent attack, The Guardian, 10 September 2018, https://www.theguardian.com/us-news/2018/sep/10/john-bolton-castigate-icc-washington-speech, accessed 14 March 2019.)
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Posner 2017, at 8.
- 60.
Robins and Post 1997, at 5.
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Ibid., at 9.
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Ibid.
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Ibid., at 9–10.
- 64.
Ibid., at 10.
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Ibid.
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Ibid., at 11.
- 67.
Ibid., at 12.
- 68.
Ibid.
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S Baragona, Trump Weighs In on Climate Change, Voice of America News, 5 December 2018, https://www.voanews.com/a/trump-weighs-in-on-climate-change/4687607.html, accessed 14 March 2019.
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Aljazeera, Khashoggi murder: Trump says he stands by Saudi crown prince, 12 December 2018, https://www.aljazeera.com/news/2018/12/khashoggi-murder-trump-stands-saudi-crown-prince-181212073639270.html, accessed 14 March 2019.
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K Tumulty, President Trump isn’t a fan of dissent – inside or outside the government, The Washington Post, 1 February 2017, https://www.washingtonpost.com/politics/president-trump-seeks-to-quash-dissent-inside-the-government/2017/02/01/788bdefa-e7ed-11e6-b82f-687d6e6a3e7c_story.html?noredirect=on&utm_term=.24b9d84455fc, accessed 14 March 2019.
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Robins and Post 1997, at 95.
- 73.
Appelbaum 2017.
- 74.
R Hofstadter, The Paranoid Style in American Politics, Harper’s Magazine, November 1964, https://harpers.org/archive/1964/11/the-paranoid-style-in-american-politics/, accessed 14 March 2019.
- 75.
F Garcia, Transcript: Donald Trump unveils ‘America First’ foreign policy platform, The Independent, 27 April 2016, https://www.independent.co.uk/news/world/americas/transcript-donald-trump-unveils-america-first-foreign-policy-platform-a7004301.html, accessed 14 March 2019.
- 76.
It is worth noting that some observers have tried to portray Trump’s foreign policy as fundamentally realist in orientation (J Heilbrunn, Realism Is Back, Politico Magazine, September/October 2017, https://www.politico.com/magazine/story/2017/09/05/trump-foreign-policy-realism-realpolitik-215536, accessed 14 March 2019; S M Walt, Has Trump Become A Realist?, Foreign Policy, 17 April 2018, https://foreignpolicy.com/2018/04/17/has-trump-become-a-realist/, accessed 14 March 2019). While there are some similarities between Trump’s policies and realism (and some figures working within his administration are demonstrably “realists”), Trump’s repudiation of typically realist friendly institutions such as NATO and economic agreements aimed at marginalizing or international rivals, namely the TPP, suggest otherwise. Further, as many self-identified realists have pointed out, he eschews the hard-headed rationalism and balance of power politics advocated by realists in favor of caprice (R Kaplan, On foreign policy, Donald Trump is no realist, The Washington Post, 11 November 2016, https://www.washingtonpost.com/opinions/on-foreign-policy-donald-trump-is-a-fake-realist/2016/11/11/c5fdcc52-a783-11e6-8042-f4d111c862d1_story.html?utm_term=.ad9eed78841e, accessed 14 March 2019).
- 77.
H Broadman, Trump’s Misplaced Penchant for Bilateral Trade Deals, Forbes, 31 January 2018, https://www.forbes.com/sites/harrybroadman/2018/01/31/trumps-misplaced-penchant-for-bilateral-trade-deals/#501bf75957b9, accessed 14 March 2019.
- 78.
B Appelbaum, U.S. Begins Nafta Negotiations With Harsh Words, The New York Times, 16 August 2017, https://www.nytimes.com/2017/08/16/business/economy/nafta-negotiations-canada-mexico.html, accessed 14 March 2019.
- 79.
F Zakaria, Trade is the Republican Party’s last stand, The Washington Post, 8 March 2018, https://www.washingtonpost.com/opinions/trade-is-the-republican-partys-last-stand/2018/03/08/b31c840e-2313-11e8-94da-ebf9d112159c_story.html?utm_term=.6b2803750f8a, accessed 14 March 2019.
- 80.
P R Pillar, Trump Is No Realist, The National Interest, 27 May 2017, https://nationalinterest.org/blog/paul-pillar/trump-no-realist-20887, accessed 14 March 2019.
- 81.
Joosse 2014.
- 82.
A Taylor, A timeline of Trump’s complicated relationship with the TPP, The Washington Post, 13 April 2018, https://www.washingtonpost.com/news/worldviews/wp/2018/04/13/a-timeline-of-trumps-complicated-relationship-with-the-tpp/?utm_term=.e4a4cafe3eb5, accessed 14 March 2019.
- 83.
Weber 1978.
- 84.
Michelutti 2017.
- 85.
Bederman 2001.
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Fichtelberg, A. (2019). Populist Paranoia and International Law. In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2018. Netherlands Yearbook of International Law, vol 49. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-331-3_3
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