Nationalism is not, of course, an incontrovertible good. Some of the worst atrocities of our recent history have been visited on peoples in its cause. For small countries in the commonwealth such as New Zealand, becoming a fully self- governing nation was held out as something to aim for, a glittering prize for proving oneself as loyal, responsible, and having learnt well the art of British government. In the colonial context, nationhood has been portrayed as an idealized goal. By the time New Zealand achieved the formal goal of nationhood, however, the very meaning of nationhood had changed—as it had to do to accommodate the expanded number of states. At the turn of the twentieth century, the British Empire covered one-fifth of the earth’s surface: some 11,400,000 square miles and 410 million people. Acknowledged states numbered only fifty. Now there are nearly 200 states. ‘Nationhood’ for newcomers to the “family of nations” could not but be shaped by the history of the Empire itself.

I begin by tracing New Zealand’s (often ambivalent) progress from Dominion to nation-state status during the course of the twentieth century. I go on to suggest that the increasing impact of international human rights and economic agreements on New Zealand’s legislature and courts means there is no “national law” meant in a discrete and autonomous sense. How much “international” law is adopted rather than imposed is more difficult to assess. What is clear is that the early twentieth century version of the nation-state has evanesced.

Emerging legal systems should look to civil law judicial design because focusing reform on the judiciary has several advantages. Judges are important to competent dispute resolution whether the base system derives from the common law or civil law. Able judges can be the great equalizers, assuring fair litigation regardless of the relative resources of the litigants. The common law relies on the performance of its lawyers and on advocacy to assure successful litigation, but lawyers are responsible to their clients alone. Judges, on the other hand, are neutrals who are responsible to the public and ultimately justice. Furthermore, the judiciary is an identifiable and discrete component of any legal system and judicial performance and conduct can be subject to public scrutiny. Reform notions based on the common law would naturally focus on the development of a competent private bar and scrutiny of its performance, but lawyers are less identifiable and manageable as a group than judges, and formal techniques for assuring quality, as we see in the U.S., are largely ineffective.

Reference to the civil law model may have another advantage for many emerging legal systems. The role of judges in large non-transatlantic legal cultures may make the civil law judicial model more compatible with traditional customary or religiously-based legal attitudes. Judges in many of these cultures are not so much presiding officials responsible for fair litigation and choosing the winner as they are counselors, educators, or even parents charged with guiding the litigants to the proper outcome. That is, judges represent moral authority rather than state empowerment. The civil law judicial philosophy, which places so much faith in the judge, might be more adaptable to such legal systems.

Recognizing the potential for judge-oriented reforms, I look here at the lessons which might be derived from civil law’s approach as an “outsider,” experienced with the U.S. version of the common law model. My purpose is merely to explore the advantages of civil law judicial design, not to advocate for the adoption of the whole of either model. Indeed, as will be discussed throughout, the U.S. common law system has incorporated some of these same concepts in its administrative process. The civil law approach might help an emerging legal culture improve the quality of its judiciary and provide it with better tools to perform an active role in dispute resolution. My analysis below takes separately these two goals of civil law judicial design.

The global trend toward judicial empowerment through constitutionalization has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike. As Ronald Dworkin—perhaps the most prominent constitutional theorist supportive of the worldwide convergence to constitutionalism— observes, every member of the European Community as well as other “mature democracies” (in Dworkin’s words) subscribe to the view that democracy must protect itself against the tyranny of majority rule through constitutionalization and judicial review. Even countries such as Britain, New Zealand, Canada, and Israel—described until recently as bastions of Westminster-style parliamentary sovereignty—have embarked upon a comprehensive constitutional overhaul aimed at introducing principles of constitutional supremacy into their respective political systems.

What are the political origins of the sweeping convergence to constitutionalism and judicial review? The constitutionalization of rights and the corresponding establishment of judicial review are widely perceived as power-diffusing measures commonly associated with liberal or egalitarian values. As a result, studies of the political origins of the worldwide convergence to constitutionalism tend to portray it as the reflection of modern democracies’ post-World War II coming to terms with, and deep commitment to, a “thick” notion of democracy (i.e. the notion that democracy has more to it than a mere adherence to the principle of majority rule), as a result of progressive social change or liberalizing political transformation, or simply as a reflection of their political leaders’ benevolent devotion to an elevated vision of human rights. Unfortunately, however, most of the assumptions regarding the predominantly benign and progressive origins of constitutionalization remain for the most part untested and abstract.

This paper attempts to address this scholastic lacuna. It is divided into three parts. First, I survey and critically assess the main existing theories of constitutional transformation that purport to explain the causal mechanisms behind the constitutional entrenchment of rights and the establishment of judicial review. Second, I suggest that the trend toward constitutionalization is hardly driven by politicians’ genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. These three self-interested groups tend to form coalitions of legal innovation to determine the timing, extent, and nature of constitutional reforms. The trend towards judicial empowerment is a means by which pre-existing and ongoing socio-political struggles in a particular polity are carried out. I conclude by suggesting that the global trend toward juristocracy is part of a broader process, whereby political and economic elites, while they profess support for democracy, attempt to insulate policymaking from the vicissitudes of democratic politics.

Particularly after World War II, the picture began to change. The recognition of international organizations as derivative, limited subjects of international law was established. With their increasing expertise in dealing with matters related to the “production of public goods” in practically all fields of political, economic, social, and cultural life, a process of diversification of the entities exercising public authority began—although still on a very limited scale— but with some inkling of federalization. At the regional level, however, the founding of supranational organizations introduced a new quality in the diversification of entities exercising public authority. Around the European Communities, and in our days the European Union, an intense debate was and still is under way regarding the nature of supranational organizations. However, with the process of globalization, the diversification of entities exercising public authority has reached another dimension: Under the impact of globalization, understood as a process of denationalization ( Entstaatlichung ), not only has the “production of public goods” been shifted to international and supranational non-state actors, but non-governmental organizations (NGOs) have also become heavily involved in meeting various global challenges regarding the protection of human rights, the environment, and international security, i.e. in the provision of “public goods.” And, last but not least, transnational regulatory regimes must be mentioned for their role in coping with the many global challenges we face in our time.

The present paper will therefore concentrate on the question whether the growing diversity of actors involved in the “production of public goods,” and the ensuing pluralism of institutions and actors on different levels beyond the state, can be structured and to some extent constitutionalized in a legal framework of a transnational federalism. Part I will address the diversification of actors exercising public authority or participating in its exercise. Part II will first analyze the concept of federalism, specifically whether it can be transferred to the transnational realm, and if so, whether and how the concept needs to be reconceptualized. This Part will then describe and critically review some model approaches, and will attempt to outline a concept of transnational federalism that is not state-centered and is thus more adequate to cope with the emerging pluralism of centers exercising public authority than traditional concepts of federalism.

We shall also see that litigation over patents on biotechnological inventions can give rise to questions of constitutional law and environmental law, as in the case of the patent on the Harvard mouse, which has been tested on constitutional grounds by the Supreme Court of Canada, and on environmental grounds by the European Patent Office. The mouse was genetically engineered to be particularly susceptible to cancer. We shall return to Harvard and its famous mice shortly.

During the New Deal, we were coming to grips as a nation with the realities and societal needs of a national economy. Communications had become national, as had our transportation needs and capabilities. Commerce was now national, as were the markets for securities, labor, energy, and natural resources. The Supreme Court initially struck down federal legislation seeking to regulate aspects of these national markets, as if any changes that were to occur had to conform to a vision of the economy formulated in terms of nineteenth century ideologies and technologies. Eventually, with what we have come to refer to as the “switch in time that saved nine,” an overreaching Supreme Court learned to respect the political experimentation that a majority of Congress believed was necessary. When it came to judicial review of the economic legislation of the New Deal, the Court developed an appropriately deferential rational basis test that it applied to these statutes. New Deal legislation easily survived such review. As a result of the application of this new deferential standard of judicial review, the Court essentially stayed out of the economic politics of the New Deal.

Today, we are still learning how best to live with and, if possible, govern a global economy. A variety of questions confront us. How do we govern globalization? And what exactly is globalization? Is it a set of neoliberal socioeconomic processes that know few limits or boundaries and, like the markets that drive them, simply extend, in an inevitably linear fashion, over, through, and beyond the governmental structures of nation states? Or are these global processes capable of transformation or resistance at the national and local levels? Can citizens at the domestic level of governance not only resist these forces but transform them as well, by taking into account noneconomic values and concerns, such as those traditionally associated with the New Deal’s social safety net—welfare, social security, health care, etc? How are the voices of citizens who favor such views to be heard, especially if these issues are increasingly left to the private sector?

Globalization can mean many things—from pure laissez-faire markets to the regulatory demands of the World Trade Organization (WTO). The kind of global perspective that lawmakers adopt will affect how they choose to resist or facilitate the changes that globalization appears to promote. It also will affect the way they use distinctions that once helped us to allocate power and sort out the responsibility for its exercise. Given the de-centered nature of the global state, however, and the ways in which the global economy now integrates itself throughout national economies, distinctions developed in the context of a national economy, distinctions such as public and private, state and federal, national and international, domestic and foreign, or local and global, no longer accurately capture or reflect the new power relationships to which these distinctions once applied. There is a tendency on the part of courts to treat changes in the allocation of what is public or what is private, or what is federal and what is state, as if they all involved zero- sum shifts of power; however, globalization does more that reallocate power among pre-existing categories. It changes the power relationships within those categories, requiring a reinvention, if you will, of the very meaning of those terms.

The role that courts are playing and will play in the future in this process of reinvention is crucial and can have long-run significance; however, this role is usually indirect. The reforms that produce the litigation coming before the courts are not labeled “The Global Deal.” Rather, the cases tend to involve the increasing use of hybrid public/private arrangements where private enterprise now provides services once handled exclusively by the state. Citizens are now, for example, increasingly described as consumers or clients in such privatized arrangements. Courts are asked to determine, for example, the liability of private prison guards who negligently handcuffed a prisoner assigned to a private facility. Are privatized prisons private in the sense we might use the word when referring, perhaps, to IBM, or is this a new way for the public to carry out its collective responsibilities? What once was public is now private. Or courts may find themselves involved in cases involving federal statutes that regulate what we expect states to do—for example, tend to local crime issues such as the possession of guns on school grounds or end domestic violence directed against women. What once was traditionally a state concern is now addressed at the federal level. Questions involving safety and various forms of violence increasingly are viewed as national in scope. What is really going on here and what are domestic courts to do? To paraphrase Justice Oliver Wendell Holmes, it is my hope that domestic courts will see the global in the particular, and rule accordingly. But short of that, at least in the constitutional realm, it is crucial for courts to recognize that this is a time for experimentation and politics at all levels of government, not the imposition of nineteenth century concepts of sovereignty that so often form the basis of Supreme Court decisions involving federalism concerns.

Globalization, as I use the term, refers primarily to processes that have denationalizing effects on the states. Devolution, quite literally, fragments social issues by denationalizing solutions and, inevitably, the nature of the problems involved as well. Devolving welfare responsibility or housing for the poor to the state level means individual states can and will vary not only in their approaches to such issues, but in the priority they give to them. As states compete for investment and the retention of taxpayers, they have distinct incentives to minimize the costs of redistributive programs such as welfare, Medicaid, or poverty programs in general. Yet, these were precisely the kinds of programs that Congress tried to (and to a large extent did) send back to the states in the 1990s. The agenda was, if not the elimination of such federally supported programs, their minimization in terms of importance and costs at the federal and national level. Though the theory of devolution is that it increases democracy by bringing decisions closer to those directly affected by them, it is, in certain contexts, actually more likely to narrow the range and effectiveness of democratic participants by minimizing the political strength of groups whose members are more effective and whose numbers are more impressive on a national level than on a local level.

The turn toward devolution in Congress and the revival of doctrines of federalism in the courts can have untoward effects on politics and policy makers at all levels of government, particularly when the changes involved are premised on a conception of the state that predates the global economy as we know it today. The politics giving rise to such reforms in Congress can, of course, change; however, constitutional decisions by the courts are more lasting. They also, inevitably, have a way of framing the political debates that should go on in the legislative and executive branches of government. This article looks at federalism through a global lens, and argues that the analytic tools the Supreme Court has used in recent federalism opinions are inappropriate for the nature of government and governance today. The article concludes with a plea for judicial restraint and a doctrinal approach to such power allocation issues not unlike that used by the courts during the New Deal. The similarity in deferential approaches to judicial review should not, however, be associated with retaining or returning to an earlier time, as far as the substance and methods of regulation are concerned. Rather, deference is to ensure that there can be a maximum of innovation and creativity between and among various levels of government and nonstate actors as well, when it comes to coping with societal problems that are global in scope today.