American Identity Politics and International Law

It has long been conventional in our public discourse to assume that special interest groups play a destabilizing role in shaping international law. In the United States, commentators are quick to point to a solution: increase transparency and try to engage the larger voting public regarding the moral and economic merits of legal globalization. This Article argues the opposite: if the American experience with international trade controversies is any guide, appeals to mass politics all too often give rise to moral inflation, which is likely to increase the role of identity politics in international law and render beneficial and durable bargains more difficult. The problem is that when economic and cultural cleavages happen to overlap, as they often do in the United States, disagreements over relatively mundane and technical issues between narrow groups in international law can sometimes be converted into high stakes contests over social identity that divide wide swaths of the population into rival camps. To illustrate these claims, this Article uses the recent controversy over the renegotiation of the North American Free Trade Agreement (NAFTA) and the American experience with tariff disputes in the late nineteenth and early twentieth centuries.