Constitutionalism as a legal technology for structuring state power has spread around the world over the last century, as a practice and also as an ideal often linking the institutions of the state to commitments relating to political liberalism and free markets. Yet there is growing evidence that illiberal forms of constitutionalism may now be on the rise internationally. Some of the countervailing forces (economic crisis, national security threats, populism) that may limit the appeal and spread of liberal constitutionalism have been identified in the comparative-law literature as key drivers of this phenomenon. This Essay turns to a different explanation: we examine the degree to which American imperial ambitions have constituted a barrier to nation-state-level efforts at installing constitutionalism for reasons as varied as the failure of American nation-building projects and disenchantment with the putatively international liberal order led by the United States. We develop this argument with an analysis of the commitment to constitutionalism at the heart of the American century and its relationship to racial and economic policies pursued by American elites. We then trace how the international dimensions of the constitutional project receded with the end of the Cold War by tracking key changes to strategies of democracy promotion and multilateral governance under the Clinton, Bush, and Obama presidencies. Understanding the diffusion of constitutionalism and rule-based international governance as a means of projecting American power transnationally (as a domestic prescription) and globally (as an ordering principle) exposes the degree to which empire and constitutionalism have been deeply imbricated. By extension, we contend that the decline in constitutionalism represents a crisis in the articulation of American global power in the post–Cold War era.
"Constitutionalism and the American Imperial Imagination,"
University of Chicago Law Review: Vol. 85:
2, Article 11.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol85/iss2/11