October 22, 2021


ColorfulMuslimsParisOppressor vs. victim groups, with immigrant groups designated as victims. Influenced (however indirectly) by the Hegelian Marxist thinking associated with the Italian writer Antonio Gramsci (1891-1937) and the Central European
theorists known as the Frankfurt School, global progressives posit that throughout human history there are essentially two types of groups: the oppressor and the oppressed, the privileged and the marginalized. In the United States, oppressor groups would variously include white males, heterosexuals, and Anglos, whereas victim groups would include blacks, gays, Latinos (including obviously many immigrants), and women.

Liberal Democracy vs. Transnational Progressivism: The Future of the Ideological
Civil War Within the West

Nearly a year before the September 11 attacks on the World Trade Center and the Pentagon, wire
service stories gave us a preview of the transnational politics of the future. It was reported on
October 24, 2000, that in preparation for the UN Conference Against Racism, about fifty
American nongovernmental organizations (NGOs) sent a formal letter to UN Human Rights
Commissioner Mary Robinson calling on the UN “to hold the United States accountable for the
intractable and persistent problem of discrimination” that “men and women of color face at the
hands of the U.S. criminal justice system.”1

The NGOs included the Leadership Conference on Civil Rights, Amnesty International-
U.S.A. (AI-U.S.A.), Human Rights Watch (HRW), the Arab-American Institute, National
Council of Churches, American Friends Service Committee, the National Association for the
Advancement of Colored People, the American Civil Liberties Union, the Mexican-American
Legal Defense and Educational Fund, the International Human Rights Law Group, the Lawyers
Committee for Civil Rights under Law, and others. Their spokesman, Wade Henderson, of the
Leadership Conference on Civil Rights, stated that the NGOs’ demands “had been repeatedly
raised with federal and state officials [in the United States] but to little effect. . . . In frustration
we now turn to the United Nations.”2 In other words, the NGOs, unable to enact the policies they
favored through the normal processes of American constitutional democracy-the Congress, state
governments, state courts, the federal executive branch, or even the federal courts-felt it necessary
to appeal to authority outside of American democracy and beyond its Constitution.
In the two weeks before September 11, from August 31 to September 7, 2001, the UN
World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance
was held in Durban, South Africa. The American NGOs listed above attended the conference
with financial support from the Ford, Rockefeller, MacArthur, and Charles Stewart Mott
Foundations. At the conference the NGOs worked with delegates from African states that
supported “reparations” from Western nations as compensation for the transatlantic slave trade of
the seventeenth to nineteenth centuries. American NGOs provided research assistance and helped
develop reparations resolutions that condemned only the West, without mentioning the larger
traffic in African slaves that were sent to the Islamic lands of the Middle East. In addition, the
NGOs endorsed a series of demands, including:

• U.S. acknowledgment of “the breadth and pervasiveness of institutional racism” that
“permeates every institution at every level.”
• A declaration that “racial bias corrupts every stage of the [U.S.] criminal justice process,
from suspicion to investigation, arrest, prosecution, trial, and sentencing.”
• Support and expansion of federal and state hate crimes legislation.
• Condemnation of opposition to affirmative action measures.
• U.S. recognition of an adequate standard of living as a “right, not privilege.”
• A statement deploring “denial of economic rights” in the United States.
1 Anthony Goodman, United Nations, Reuters, Oct. 24, 2000.
2 Ibid. Orbis

• Promotion of multilingualism instead of “discriminatory” English-language acquisition
emphasis in U.S. schools.
• Denunciation of free market capitalism as a fundamentally flawed system.”3
Most importantly, the NGOs insisted that the United States ratify all major UN human rights
treaties and drop legal reservations to treaties already ratified. For example, in 1994 the United
States ratified the UN Convention on the Elimination of Racial Discrimination (CERD), but
attached reservations declaring that it did not accept treaty requirements “incompatible with the
Constitution.” The official State Department reservations memorandum specifically notes that the
CERD’s restrictions on free speech and freedom of assembly are incompatible with the First
Amendment. Yet leading NGOs including the HRW and AI-U.S.A. demand that the United
States drop all reservations and “comply” with the CERD treaty.4
On August 6, 2001, Reuters reported that the United States had presented its first
explanation of how it was implementing the CERD treaty to a UN committee. An NGO
representative from the Center for Constitutional Rights reportedly said that “Almost every
member of the UN committee raised the question of why there are vast racial disparities . . . in
every aspect of American life-education, housing, health, welfare, criminal justice.” A
representative from HRW declared that the United States offered “no remedies” for these
disparities, but “simply restated” its position by supporting equality of opportunity and indicating
“no willingness to comply” with CERD.5 (This would presumably mean the enactment of policies
resulting in statistical equality of condition for racial and ethnic minorities in education, housing,
health, welfare, criminal justice and the like.)

Indeed, to comply with the NGO interpretation of the CERD treaty, the United States
would have to turn its political and economic system, together with their underlying principles,
upside down-abandoning the free speech guarantees of the Constitution, bypassing federalism,
and ignoring the very concept of majority rule-since practically nothing in the NGO agenda is
supported by the American electorate.

The NGOs at the Durban conference exemplify a new challenge to liberal democracy and
its traditional home, the liberal democratic nation-state. These have always been self-governing
representative systems comprised of individual citizens who enjoy freedom and equality under
law and together form a people within a democratic nation-state. Thus, liberal democracy means
individual rights, democratic representation (with some form of majority rule) and national
citizenship. Yet, as the vignettes of the Durban conference (and myriad other conflicts of the past
four decades) demonstrate, all of these principles, along with the very idea of the liberal
democratic nation-state, are contested today in the West, suggesting that we have not reached the
“end of history” in the ideological sense delineated by Francis Fukuyama in his groundbreaking
1989 essay.6

Post-September 11

Three weeks after the September 11 attacks, Fukuyama stated in an article in the Wall
Street Journal that his “end of history” thesis remained valid twelve years after he first presented
it, shortly before the fall of the Berlin Wall. Fukuyama’s core argument was that after the defeat
of communism and National Socialism, no serious ideological competitor to Western-style liberal
democracy was likely to emerge in the future. Thus, in terms of political philosophy, liberal
3 NGO demands listed in “Report of the U.S. Leadership Meetings on the World Conference Against Racism,” convened by Gay
McDougall, International Human Rights Group, 2001.
4 Reuters, AP, New York Times August 6, 2001 by Karen Iley on Yahoo! News.
5 Ibid
6 “The End of History?” National Interest, Summer 1989.

democracy is the end of the evolutionary process. To be sure, there will be wars and terrorism,
but no alternative ideology with a universal appeal will seriously challenge the ideas and values
of Western liberal democracy as the “dominant organizing principles” around the world.
Fukuyama correctly points out that non-democratic rival ideologies such as radical Islam
and “Asian values” have little appeal outside their own cultural areas, but these areas are
themselves vulnerable to penetration by Western democratic ideas. The September 11 attacks
notwithstanding, “we remain at the end of history,” Fukuyama insists, “because there is only one
system that will continue to dominate world politics, that of the liberal-democratic West.” There
is nothing beyond liberal democracy “towards which we could expect to evolve.” Fukuyama
concludes by stating that there will be challenges from those who resist progress, “but time and
resources are on the side of modernity.”7

Indeed, but is “modernity” on the side of liberal democracy? Fukuyama is probably right
that the current crisis with the forces of radical Islam will be overcome, and that, at the end of the
day, there will be no serious ideological challenge originating outside of Western civilization.
However, the activities of the NGOs suggest that there already is an alternative ideology to liberal
democracy within the West that for decades has been steadily, and almost imperceptibly,

Thus, it is entirely possible that modernitythirty or forty years hencewill witness not
the final triumph of liberal democracy, but a new challenge to it in the form of a new
transnational hybrid regime that is post-liberal democratic, and in the context of the American
republic, post-Constitutional and post-American. I will call this alternative ideology
“transnational progressivism.” This ideology constitutes a universal and modern worldview that
challenges in theory and practice both the liberal democratic nation-state in general and the
American regime in particular. The aftermath of September 11 provides the possibility of a
resurgence by the forces of traditional nation-centered liberal democracy. But before addressing
this possibility, it is necessary to examine in detail the theory and practice of “transnational

Transnational Progressivism

The key concepts of transnational progressivism could be described as follows:
(1) The ascribed group over the individual citizen. The key political unit is not the
individual citizen, who forms voluntary associations and works with fellow citizens regardless of
race, sex, or national origin, but the ascriptive group (racial, ethnic, or gender) into which one is
born. This emphasis on race, ethnicity, and gender leads to group consciousness and a
deemphasis of the individual’s capacity for choice and for transcendence of ascriptive categories,
joining with others beyond the confines of social class, tribe, and gender to create a cohesive

(2) A dichotomy of groups: Oppressor vs. victim groups, with immigrant groups
designated as victims. Influenced (however indirectly) by the Hegelian Marxist thinking
associated with the Italian writer Antonio Gramsci (1891-1937) and the Central European
theorists known as the Frankfurt School, global progressives posit that throughout human history
there are essentially two types of groups: the oppressor and the oppressed, the privileged and the
marginalized. In the United States, oppressor groups would variously include white males,
heterosexuals, and Anglos, whereas victim groups would include blacks, gays, Latinos (including
obviously many immigrants), and women.
7 Francis Fukuyama, “History Is Still Going Our Way,” Wall Street Journal, Oct. 5, 2001.

Multicultural ideologists have incorporated this essentially Hegelian Marxist “privileged
vs. marginalized” dichotomy into their theoretical framework. As political philosopher James
Ceaser puts it, multiculturalism is not “multi” or concerned with many groups, but “binary,”
concerned with two groups, the hegemon (bad) and “the Other” (good) or the oppressor and the
oppressed. Thus, in global progressive ideology, “equity” and “social justice” mean strengthening
the position of the victim groups and weakening the position of oppressors-hence preferences for
certain groups are justified. Accordingly, equality under law is replaced by legal preferences for
traditionally victimized groups. In 1999, the U.S. Equal Employment Opportunity Commission
extended antidiscrimination protection under Title VII of the 1964 Civil Rights Act to illegal

(3) Group proportionalism as the goal of “fairness.” Transnational progressivism
assumes that “victim” groups should be represented in all professions roughly proportionate to
their percentage of the population or, at least, of the local work force. Thus, if women make up 52
percent and Latinos make up 10 percent of the population, then 52 percent of all corporate
executives, physicians, and insurance salesmen should be women and 10 percent should be
Latinos. If not, there is a problem of “underrepresentation” or imbalance that must be rectified by
government and civil society. Thomas Sowell recently wrote-as he has for several decades-that
many Western intellectuals perpetually promote some version of “cosmic justice” or form of
equality of result.8 The “group proportionalism” paradigm is pervasive in Western society: even
the U.S. Park Service is concerned because 85 percent of all visitors to the nation’s parks are
white, although whites make up only 74 percent of the population. Therefore, the Park Service
announced in 1998 that it was working on this “problem.”9

(4) The values of all dominant institutions to be changed to reflect the perspectives of the
victim groups. Transnational progressives in the United States (and elsewhere) insist that it is not
enough to have proportional representation of minorities (including immigrants, legal and illegal)
at all levels in major institutions of society (corporations, places of worship, universities, armed
forces) if these institutions continue to reflect a “white Anglo male culture and world view.”
Ethnic and linguistic minorities have different ways of viewing the world, they say, and these
minorities’ values and cultures must be respected and represented within these institutions. At a
1998 U.S. Department of Education conference promoting bilingual education, SUNY professor
Joel Spring declared, “We must use multiculturalism and multilingualism to change the dominant
culture of the United States.” He noted, for example, that unlike Anglo culture, Latino culture is
“warm” and would not promote harsh disciplinary measures in the schools.10

(5) The Demographic Imperative. The demographic imperative tells us that major
demographic changes are occurring in the United States as millions of new immigrants from non-
Western cultures and their children enter American life in record numbers. At the same time, the
global interdependence of the world’s peoples and the transnational connections among them will
increase. All of these changes render the traditional paradigm of American nationhood obsolete.
That traditional paradigm based on individual rights, majority rule, national sovereignty,
citizenship, and the assimilation of immigrants into an existing American civic culture is too
narrow and must be changed into a system that promotes “diversity,” defined, in the end, as group

(6) The redefinition of democracy and “democratic ideals.” Since Fukayama’s treatise,
transnational progressives have been altering the definition of “democracy,” from that of a system
of majority rule among equal citizens to one of power sharing among ethnic groups composed of
both citizens and non-citizens. For example, Mexican foreign minister Jorge Castañeda wrote in
8 Thomas Sowell, The Quest for Cosmic Justice (Free Press, 1999).
9 John Leo, “Long on Diversity Division,” Washington Times, May 21, 1998.
10 In Jorge Amselle, “Reverse Imperialism,” National Review, Oct. 12, 1998.

the Atlantic Monthly in July 1995 that it is “undemocratic” for California to exclude noncitizens,
specifically illegal aliens, from voting. Former Immigration and Naturalization Service (INS)
general counsel Alexander Aleinikoff, declaring that “[we] live in a post-assimilationist age,”
asserted that majority preferences simply “reflect the norms and cultures of dominant groups” (as
opposed to the norms and cultures of “feminists and people of color”).11 James Banks, one of
American education’s leading textbook writers, noted in 1994 that “to create an authentic
democratic Unum with moral authority and perceived legitimacy the pluribus (diverse peoples)
must negotiate and share power.”12 In effect, Banks said, existing American liberal democracy is
not quite authentic; real democracy is yet to be created. It will come when the different “peoples”
or groups that live within America “share power” as groups.

(7) Deconstruction of national narratives and national symbols. Transnational
progressives have focused on traditional narratives and national symbols of Western democratic
nation-states, questioning union and nationhood itself. In October 2000, the British governmentsponsored
Commission on the Future of Multi-Ethnic Britain issued a report that denounced the
concept of “Britishness” as having “systemic . . . racist connotations.” The Commission, chaired
by Labour life peer Lord Parekh, declared that instead of defining itself as a nation, the UK
should be considered a “community of communities.” One member of the Commission explained
that the members found the concepts of “Britain” and “nation” troubling. The purpose of the
Commission’s report, according to the chairman Professor Parekh, was to “shape and restructure
the consciousness of our citizens.” The report declared that Britain should be formally
“recognized as a multi-cultural society” whose history needed to be “revised, rethought, or

In the United States in the mid-1990s, the proposed “National History Standards,”
reflecting the marked influence of multiculturalism among historians in the nation’s universities,
recommended altering the traditional narrative of the United States. Instead of emphasizing the
story of European settlers, American civilization would be redefined as a “convergence” of three
civilizations-Amerindian, West African, and European-the bases of a hybrid American
multiculture. Even though the National History Standards were ultimately rejected, this core
multicultural concept that that United States is not primarily the creation of Western civilization,
but the result of a “Great Convergence” of “three worlds” has become the dominant paradigm in
American public schools.

In Israel, adversary intellectuals have attacked the Zionist narrative. A “post-Zionist”
intelligentsia has proposed that Israel consider itself multicultural and deconstruct its identity as a
Jewish state. Tom Bethell has pointed out that in the mid-1990s the official appointed to revise
Israel’s history curriculum used media interviews to compare the Israeli armed forces to the SS
and Orthodox Jewish youth to the Hitler Youth. A new code of ethics for the Israel Defense
Forces eliminated all references to the “land of Israel,” the “Jewish state,” and the “Jewish
people,” and, instead, referred only to “democracy.” Even Israeli foreign minister Simon Peres
sounded the post-Zionist trumpet in his 1993 book, The New Middle East, where he wrote that
“we do not need to reinforce sovereignty, but rather to strengthen the position of humankind.” He
called for an “ultranational identity,” saying that “particularist nationalism is fading and the idea
of a ‘citizen of the world’ is taking hold. . . . Our ultimate goal is the creation of a regional
community of nations, with a common market and elected centralized bodies,” a type of Middle
Eastern EU.14
11 Alexander Alienikoff, “Citizens, Aliens, Membership and the Constitution,” Constitutional Commentary 7, 1990, p. 30.
12 James Banks, “Transforming the Mainstream Curriculum,” Educational Leadership, May 1994, p. 4.
13 Philip Johnston, “Straw Wants to Rewrite Our History, Electronic Telegraph, Oct. 10, 2000.
14 Quotes from Tom Bethell, “The Cultural Wars in Israel,” paper prepared for Institute for Advanced Strategic and Political Studies
conference on “Israel: The Advanced Case of Western Afflictions,” Washington, D.C., Dec. 15, 1997; David Remnick, “The Dreamer,”

(8) Promotion of the concept of postnational citizenship. “Can advocates of postnational
citizenship ultimately succeed in decoupling the concept of citizenship from the nation-state in
prevailing political thought?” asks Rutgers Law Professor Linda Bosniak.15 An increasing
number of international law professors throughout the West are arguing that citizenship should be
denationalized. Invoking concepts such as inclusion, social justice, democratic engagement, and
human rights, they argue for transnational citizenship, postnational citizenship, or sometimes
global citizenship embedded in international human rights accords and “evolving” forms of
transnational arrangements.

These theorists insist that national citizenship should not be “privileged” at the expense
of postnational, multiple, and pluralized forms of citizenship identities. For example, the Carnegie
Endowment for International Peace, under the leadership of its president, Jessica Tuchman
Mathews, has published a series of books in the past few years “challenging traditional
understandings of belonging and membership” in nation-states and “rethinking the meaning of
citizenship.”16 Although couched in the ostensibly neutral language of social science, these
essays from scholars from Germany, Britain, Canada, and France, as well as the United States,
argue for new, transnational forms of citizenship as a normative good.

(9) The idea of transnationalism as a major conceptual tool. The theory of
transnationalism promises to be for the first decade of the twenty-first century what
multiculturalism was for the last decade of the twentieth century. In a certain sense,
transnationalism is the next stage of multicultural ideology-it is multiculturalism with a global
face. Like multiculturalism, transnationalism is a concept that provides elites with both an
empirical tool (a plausible analysis of what is) and an ideological framework (a vision of what
should be). Transnational advocates argue that globalization requires some form of transnational
“global governance” because they believe that the nation-state and the idea of national citizenship
are ill suited to deal with the global problems of the future. Academic and public policy
conferences today are filled with discussions of “transnational organizations,” “transnational
actors,” “transnational migrants,” “transnational jurisprudence,” and “transnational citizenship,”
just as in the 1990s they were replete with references to multiculturalism in education,
citizenship, literature, and law.

Many of the same scholars who touted multiculturalism now herald the coming
transnational age. Thus, at its August 1999 annual conference, “Transitions in World Societies,”
the same American Sociological Association (ASA) that promoted multiculturalism from the late
1980s to the mid-1990s featured transnationalism. Indeed, the ASA’s then-president, Professor
Alejandro Portes of Princeton University, argued that transnationalism is the wave of the future.
He insisted that transnationalism, combined with large-scale immigration, would redefine the
meaning of American citizenship. University of Chicago anthropologist Arjun Appadurai has
suggested that the United States is in transition from being a “land of immigrants” to “one node in
a postnational network of diasporas.”17

It is clear that arguments over globalization will dominate much of early twenty-first
century public debate. The promotion of transnationalism as both an empirical and normative
concept is an attempt to shape this crucial intellectual struggle over globalization. The adherents
of transnationalism create a dichotomy. They imply that one is either in step with globalization,
and thus with transnationalism and forward-looking thinking, or one is a backward antiglobalist.
New Yorker Jan. 7, 2002; and Yoram Hazony, “The End of Zionism?” Azure Summer 1996. On post-Zionism in general see Yoram
Hazony, The Jewish State: The Struggle for Israel’s Soul (Washington, D.C. and New York: New Republic/Basic Books, 2000)
15 Linda Bosniak, “Citizenship Denationalized,” Indiana Journal of Global Legal Studies, Spring 2000, p. 508.
16 See T. Alexander Aleinikoff and Douglass Klusmeyer, ed, From Migrants to Citizens: Membership in a Changing, World
(Washington, D.C.: Carnegie Endowment for International Peace, 200); and T. Alexander Aleinikoff and Douglas Klusmeyer, ed.,
Citizenship Today: Global Perspectives and Practices (Washington, D.C.: Carnegie Endowment for International Peace, 2001).
17 In Linda K. Kerber, “The Meaning of Citizenship,” Dissent, Fall 1997, p.36.

Liberal democrats (who are internationalists and support free trade and market economics) must
reply that this is a false dichotomy-that the critical argument is not between globalists and
antiglobalists, but instead over the form Western global engagement should take in the coming
decades: will it be transnationalist or internationalist?

Transnational Progressivism’s Social Base: A Post-National Intelligentsia
The social base of transnational progressivism could be labeled a rising postnational
intelligentsia, the leaders of which include many international law professors at prestigious
Western universities, NGO activists, foundation officers, UN bureaucrats, EU administrators,
corporation executives, and practicing politicians throughout the West. The postnational
intelligentsia is an eclectic group but it would include an identifiable group of thinkers and actors.
• British “third way” theorist Anthony Giddens, who declared that he is “in favor of
pioneering some quasi-utopian transnational forms of democracy” and “is strongly
opposed to the idea that social justice is just equality of opportunity.” 18 Giddens writes
that “the shortcomings of liberal democracy suggest the need to further more radical
forms of democratization.” Instead of liberal democracy, Giddens, using the language of
Juergen Habermas, posits a “dialogic democracy” with an emphasis on “life politics,”
especially “new social movements, such as those concerned with feminism, ecology,
peace, or human rights.”19

• Italian Marxist theorist Toni Negri (who clearly knows his Gramsci) and Duke University
Literature Professor Michael Hardt, the authors of the best-selling book Empire, lauded
by the New York Times as the “next big idea.” In Empire, Negri (a jailed former associate
of the terrorist Italian Red Brigades) and Hardt (his former student) using Marxist
concepts such as the “multitudes” i.e., “the masses” vs. the Empire attack the power of
global corporations and, without being overly specific, call for a new form of “global” or
transnational democracy.

• University of Chicago philosophy professor Martha Nussbaum, who called for
reinvigorating the concept of “global citizenship” and denounced patriotism as
“indistinguishable from jingoism” in a debate several years back that set off a wide
ranging discussion among American academics on the meaning of patriotism, citizenship,
and the nation-state.20

• Strobe Talbot, former undersecretary of state, who wrote when he was an editor of Time
magazine in the early 1990’s that he was optimistic that by the end of the twenty-first
century “nationhood as we know it will be obsolete: all states will recognize a single
global authority. . . . All countries are basically social arrangements, accommodations to
changing circumstances. No matter how permanent and even sacred they may seem at
any one time, in fact they are all artificial and temporary.” He characterizes the
devolution of national sovereignty “upward toward supranational bodies” and
“downward toward” autonomous units is a “basically positive phenomenon.”21
Complementary to this general (and diffuse) sentiment for new transnational forms of governance
is the concrete day-to-day practical work of the NGOs that seek to bring the transnational vision
to fruition. When social movements such as the ideologies of “transnationalism” and “global
18 Kevin Davey, “Left Renewal,” New Times (UK), June 1999.
19 Anthony Giddens, Beyond Left and Right: The Future of Radical Politics (Stanford, Calif.: Stanford University Press, 1994), pp. 2, 14-19, 90–91.
20 see Martha Nussbaum, “Patriotism and Cosmopolitianism,” Boston Review, Oct.-Nov. 1994.
21 Strobe Talbot, “The Birth of the Global Nation,” Time, July 20, 1992, pp. 70–71.

governance” are depicted as the result of “social forces” or the “movement of history,” a certain
impersonal inevitability is implied. However, in the twentieth century the Bolshevik Revolution,
the National Socialist Revolution, the New Deal, the Reagan Revolution, the Gaullist national
reconstruction in France, and the creation of the EU and its predecessor organizations were not
inevitable, but were the result of the exercise of political will by elites who mobilized their
strength and defeated opponents.

Similarly, “transnationalism,” “multiculturalism,” and “global governance,” like
“diversity,” are ideological tools championed by activist elites, not “forces of history.” The
success or failure of these values-loaded concepts will ultimately depend upon the political will
and effectiveness of these elites.

Facing popular resistance on issue after issue, a wide range of American NGOs seek to
bypass the normal democratic process to achieve their political ends by extra- or postconstitutional
means, demanding that the United States:
• join the International Criminal Court;
• ratify the UN Convention on Women’s Rights;
• drop reservations to the UN treaty against racial discrimination;
• reduce border policing;
• implement affirmative action legislation;
• follow international norms on capital punishment;
• accept the Kyoto Treaty on global warming;
• expand the legal rights of non-citizens in constitutional regimes.

Human Rights Activists

A good part of the energy for transnational progressivism is provided by human rights
activists, who consistently evoke “evolving norms of international law” in pursuing their goals.
The main legal conflict between traditional American liberal democrats and transnational
progressives is ultimately the question of whether the U.S. Constitution trumps international law
or vice versa. “International law” here refers to what experts including John Bolton, Jeremy
Rabkin, Jack Goldsmith, Lee Casey, and David Rivkin have called the “new international law,”
which differs from traditional concepts of the “Law of Nations.”22

Before the mid-twentieth century, traditional international law usually referred to
relations among nation-states: it was “international” in the real sense of the term. Since that time
the “new international law” has increasingly penetrated the sovereignty of democratic nationstates.
It is, therefore, in reality, “transnational law.” Human rights activists work to establish
norms for this “new international (i.e. transnational) law,” and then attempt to bring the United
States into conformity with a legal regime whose reach often extends beyond democratic politics
and the guarantees of the U.S. Constitution.

Transnational progressives (including American and non-American NGOs and UN
officials) excoriate American political, legal, and administrative practices in virulent language, as
if the American liberal democratic nation-state was an illegitimate authoritarian regime. Thus, AIU.
S.A. charged the United States in a 1998 report with “a persistent and widespread pattern of
human rights violations,” stating that “racism and discrimination contribute to the denial of the
fundamental rights of countless men, women, and children” in the United States. Moreover,
police brutality is “entrenched and nation-wide”; the United States is the “world leader in high
tech repression”; and it is time for the United States to face up to its “hypocrisy.” The report
22 See Chicago Journal of International Law, Fall 2000 issue devoted to “AEI Conference: Trends in Global Governance: Do They Threaten American Sovereignty?”

discussed “a national background of economic and racial injustice, a rising tide of anti-immigrant
sentiments” and stated that “human rights violations in the U.S. occur in rural communities and
urban communities from coast to coast.” The United States had long “abdicated its duty” to lead
the world in promoting human rights.23 Therefore, avowed William Schultz, the executive
director of AI-U.S.A., “it was no wonder the United States was ousted from the [UN] Human
Rights Commission.”24

While AI-U.S.A. called on the UN to condemn “institutionalized cruelty” in the United
States, HRW issued a 450-page report excoriating all types of “human rights violations.” For
example, HRW declared that “criminal justice polices” display a “disproportionate impact on
African-Americans. . . . Although they comprised about 12 percent of the national adult
population, they comprised 49.9 percent of the prison population.” Overall, HRW affirmed that
the United States was guilty of “serious human rights violations” including “rampant” police
brutality and “harassment of gay adults in the military paralleled by the harassment of students
perceived to be gay, lesbian, bisexual, and transgendered” in public schools. These students
“experienced” school “as a place that accepted intolerance, hatred, ostracization, and violence
against youth who were perceived as different.” HRW also attacked the “curtailment of
internationally-recognized rights” for (illegal) immigrants and complained that “the U.S. Border
Patrol continued to grow at an alarming pace, doubling since 1993, when there were roughly
4,000 agents, to. . . . approximately 8,000 agents.”25

UN special investigators examined U.S. “human rights violations” in 1990s. The first
thing these investigators did was meet with an array of American NGOs. In their reports, the UN
officials quoted freely from American NGO documents. UN investigator Maurice Glélé of Benin
wrote that, “racism existed in the U.S. with sociological inertia, structural obstacles, and
individual resistance.” Glélé visited the U.S. State Department and found that discrimination
complaints by African American State Department employees “had dragged on since 1986.”
Meanwhile, the report stated, the “State Department remains a very white institution.” The UN
investigator further wrote that “the fate of the majority of Blacks is one of poverty, sickness,
illiteracy, drugs, and crime in response to the social cul-de-sac in which they find themselves.”
Rahhika Coomaraswamy of Sri Lanka, the UN Special Rapporteur on Violence Against Women
found that the United States is “criminalizing” a large segment of its population, a group that is
“composed of poor persons of color and increasingly female.”26

Bacre Waly Ndiaye, UN Special Rapporteur on Extrajudical, Summary, or Arbitrary
Executions, like other UN investigators, consulted representatives of American NGOs including
the ACLU, American Friends Service Committee, AI-U.S.A., the NAACP Legal Defense Fund,
HRW, and the International Human Rights Law Group. Ndiaye’s report found “a significant
degree of unfairness and arbitrariness” in the application of the death penalty,”27 based on racial
data showing that 41 percent of death penalty inmates are African-American, 47 percent white, 7
percent Hispanic, and 1.5 percent American Indian.

Anti-Assimilation on the Home Front

As noted earlier, the 2001 UN Conference Against Racism and Xenophobia held in
Durban represents a classic case study of how American NGOs promote transnational
progressivism. It is revealing that the language of almost all the UN treaties that ignore the
guarantees of the U.S. Constitution (including the International Criminal Court (ICC), the
23 “Rights For All: Human Rights Concerns in the U.S.A.” (Amnesty International, Oct. 1998).
24 “Amnesty Criticizes U.S. Record on Rights,” Washington Post, May 31, 2001.
25 “World Report: United States 1999” (Human Rights Watch).
26 Rita Maran, “International Human Rights in the U.S.: A Critique,” Social Justice, Spring 1999, pp. 61–63.
27 Ibid. p. 60.

Convention on Women’s Rights, the Convention on Children’s Rights) were written by American
and other Western NGOs. In other words, the documents were written by a Western postnational
intelligentsia aided by a “Westernistic” or “Westernized” coterie of Third World intellectuals
(e.g., Nobel laureate Kofi Annan.)

It is significant, but little noticed, that many of same NGOs (HRW, AI-U.S.A.) and
international law professors who have advocated transnational legal concepts at UN meetings and
in international forums are active in U.S. immigration and naturalization law. On this front the
transnational progressives have pursued two objectives: (1) eliminating all distinctions between
citizens and non-citizens and (2) vigorously opposing attempts to assimilate immigrants into the
“dominant” Anglo culture.

Thus, when discussing immigration/assimilation issues, Louis Henkin, one of the most
prominent scholars of international law, attacks “archaic notions of sovereignty” and calls for
largely eliminating “the difference between a citizen and a non-citizen permanent resident” in all
federal laws.28 Washington University international law professor Stephen Legomsky argues that
dual nationals (who are American citizens) should not be required to give “greater weight to U.S.
interests, in the event of a conflict” between the United States and the other country in which the
American citizen is also a national.29

Two leading law professors (Peter Spiro from Hofstra, who has written extensively in
support of NGOs, and Peter Schuck from Yale) question the requirement that immigrants seeking
American citizenship “renounce ‘all allegiance and fidelity’ to their old nations.” In an op-ed in
the Wall Street Journal, they suggested dropping this “renunciation clause” from the Oath of
Renunciation and Allegiance. They also question the concept of the hyphenated American,
offering the model of “ampersand” American.30 Thus, instead of thinking of traditional Mexican-
Americans who are loyal citizens but proud of his ethnic roots, they do not object to immigrants
(or migrants) who are both “Mexican and American,” who retain “loyalties” to their “original
homeland” and vote in both countries.

University Professor Robert Bach authored a major Ford Foundation report on new and
“established residents” (the word “citizen” was assiduously avoided) that advocated the
“maintenance” of ethnic immigrant identities, supported “non-citizen voting,” and attacked
assimilation (suggesting that homogeneity, not diversity, “may” be the “problem in America”).31
Bach later left the Ford Foundation and became deputy director for policy at the INS in the
Clinton administration, where he joined forces with then INS general counsel Alexander
Alienikoff to promote a pro-multicultural, anti-assimilation federal policy. Alienikoff, a former
(and current) immigration law professor, has openly and vigorously advocated a “politics” that
“moves us beyond assimilation.”32

It is well established (through Congressional investigations and investigative reporting)
that the financial backing for this anti-assimilationist campaign has come primarily from the Ford
Foundation, which in the 1970s made a conscious decision to fund a Latino rights movement
based on advocacy-litigation and group rights.33 On this front, the global progressives have been
aided- if not always consciously, certainly in objective terms-by a “transnational right.” It was a
determined group of transnational and libertarian-leaning conservative senators and congressmen
28 Louis Henkin, “Immigration and the Constitution: A Clean Slate,” Virginia Journal of International Law, Fall 1994, p. 337.
29 Peter H. Schuck, “Plural Citizenships,” in Immigration and Citizenship in the 21st Century, edited Noah M. Pickus (Lanham, MD: Rowman and Littlefield, 1998), p. 179.
30 Peter H. Schuck and Peter J. Spiro, “Dual Citizens, Good Americans,” Wall Street Journal, Mar. 18, 1998. See also, Peter H. Schuck,
“Plural Citizenships,” in Immigration and Citizenship in the 21st Century, edited Noah M. Pickus (Lanham, MD: Rowman and Littlefield,
1998), pp. 149-191.
31 see “Changing Relations, Newcomers and Established Residents in U.S. Communities: A Report to the Ford Foundation by the National
Board of the Changing Relations Project,” principal author Robert Bach, published by the Ford Foundation, New York, April 1993.
32 T. Alexander Alienikoff, “A Multicultural Nationalism”? American Prospect, Jan.-Feb. 1998, p. 84.
33 Georgie Anne Geyer, Americans No More: The Death of Citizenship (New York: The Atlantic Monthly Press, 1996), pp. 190–230.

that prevented the Immigration Reform legislation of 1996 from limiting unskilled immigration.
The same group worked with progressives in the late 1990s to successfully block the
implementation of a computerized plan to track the movement of foreign nationals in and out of
the United States; thereby, in George Will’s apt phrase putting “commerce over country.”
Whatever their ideological, commercial, or political motives, the constant demand for “open
borders” and “free movement of people” (not simply free trade, which is a different matter all
together) by certain editorialists, commentators, lobbyists, and activists on the libertarian and
transnational right has strengthened the anti-assimilationist agenda of the global progressives.
The EU as a Stronghold of Transnational Progressivism

Whereas ideologically driven NGOs represent a subnational challenge to the values and
policies of the liberal-democratic nation-state, the EU is a large supranational macro-organization
that to a considerable extent embodies transnational progressivism, both in governmental form
and in substantive policies. The governmental structure of the EU is post-democratic. Power in
the EU principally resides in the European Commission (EC) and to a lesser extent the European
Court of Justice (ECJ). The EC is the EU’s executive body. It also initiates legislative action,
implements common policy, and controls a large bureaucracy. The EC is composed of a rotating
presidency and nineteen commissioners chosen by the member-states and approved by the
European Parliament. It is unelected and, for the most part, unaccountable.

A white paper issued by the EC suggests that this unaccountability is one of the reasons
for its success: “The original and essential source of the success of European Integration is that
the EU’s executive body, the Commission, is supranational and independent from national,
sectoral, or other influences.” This “democracy deficit” is constantly lamented, particularly by the
Germans, who have proposed greater power to the European Parliament, but, at this stage, the
issue remains and represents a moral challenge to EU legitimacy.34

The substantive polices advanced by EU leaders both in the Commission and the ECJ are
based on the global progressive ideology of group rights discussed earlier that promotes victim
groups over “privileged” groups and eschews the liberal principle of treating citizens equally as
individuals. Thus, statutes on “hate speech,” “hate crimes,” “comparable worth” for women’s
pay, and group preferences are considerably more “progressive” in the EU than in the United
States. At the same time, European courts have overruled national parliaments and public opinion
in nation-states by compelling the British to incorporate gays and the Germans to incorporate
women in combat units in their respective military services. The ECJ even struck down a British
law on corporal punishment, declaring that parental spanking is internationally recognized as an
abuse of human rights

A group of what Undersecretary of State John Bolton has referred to as “Americanist” (as
opposed to “Globalist”) thinkers has emphasized the divergence of America’s liberal philosophy
from the EU’s. In the June/July 2001 Policy Review, two Washington lawyers, Lee Casey and
David Rivkin, argued this position forcefully:

From the perspective of U.S. philosophical and constitutional traditions, the key question in determining
whether any particular model of government is a democracy is whether the governed choose their governors.
. . . Unfortunately, the reemergence [in Europe] of a pre-Enlightenment pan-European ideology that denies
the ultimate authority of the nation-state, as well as the transfer of policymaking authority from the governed
and their elected representatives to a professional bureaucracy, as is evident in the EU’s leading institutions,
34 See “European Governance,” white paper, Commission of the European Communities, Brussels, July 25, 2001, an earlier version of
which is described by Lee A. Casey and David B. Rivkin, Jr. in “Europe in the Balance: The Alarmingly Undemocratic Drift of the
European Union,” Policy Review, June/July 2001, pp. 41-53.

suggests a dramatic divergence from the basic principle of popular sovereignty once shared both by Europe’s
democracies and the United States.

In the world of practical international politics, in the period immediately prior to the
events of September 11, the EU clearly stood in opposition to the United States on some of the
most important strategic global issues, including the ICC, the Comprehensive Test Ban Treaty,
the Land Mine Treaty, the Kyoto Global Warming Treaty, and policy towards missile defense,
Iran, Iraq, Israel, China, Cuba, North Korea, and the death penalty. On most of these issues,
transnational progressives in the United States-including many practicing politicians-supported
the EU position and attempted to leverage this transnational influence in the domestic debate. At
the same, the position of the Bush administration on many of these issues has support from
elements in Europe, certainly from members of the British political class and public, and
undoubtedly from some segments of the Continental European populace as well (on the death
penalty, for example).

Even since the September 11 attacks, many Europeans have continued to snipe at
American policies and place themselves in opposition to American interests in the war on
terrorism. Within a month of September 11, Spanish judge Baltasar Garzon called the planned
military tribunals “simply illegal.”35 In December 2001 the European Parliament condemned the
U.S. Patriot Act (the bipartisan antiterrorist legislation that passed the U.S. Congress
overwhelmingly) as “contrary to the principles” of human rights because the legislation
“discriminates” against noncitizens.36 Time and again, leading European politicians have made a
point of insisting that they oppose extraditing terrorist suspects to the United States if those
terrorists would be subjected to the death penalty.

Interestingly, both conservative realists and neoconservative pro-democracy advocates
have argued that some EU, UN, and NGO thinking threatens to limit both American democracy
at home and American power overseas. As Jeanne Kirkpatrick puts it, “foreign governments and
their leaders, and more than a few activists here at home, seek to constrain and control American
power by means of elaborate multilateral processes, global arrangements, and UN treaties that
limit both our capacity to govern ourselves and act abroad.”37


Scholars, publicists, and many others in the Western world-and especially in the United
States, original home of constitutional democracy-have for the past several decades been arguing
furiously over the most fundamental political ideas. Talk of a “culture war,” however, is
somewhat misleading, because the arguments over transnational vs. national citizenship,
multiculturalism vs. assimilation, and global governance vs. national sovereignty are not simply
cultural, but ideological and philosophical, in that they pose such Aristotelian questions as “What
kind of government is best?” and “What is citizenship?”

In America, there is an elemental argument about whether to preserve, improve, and
transmit the American regime to future generations or to transform it into a new and different
type of polity. In the terms of contemporary political science we are arguing about “regime
maintenance” vs. “regime transformation.”

In the final analysis, the challenge from transnational progressivism to traditional
American concepts of citizenship, patriotism, assimilation, and at the most basic level, to the
meaning of democracy itself, is fundamental. It is a challenge to American liberal democracy. If
35 James Taranto, “No Justice, No Peace: Why It’s Fatuous to regard Sept. 11 as a ‘crime,’” OpinionJournal, Oct. 8, 2001.
36 “Welcome to Europe, Mr. Ashcroft,” OpinionJournal, Dec. 14, 2001.
37 In “American Powerfor what? A symposium,” Commentary, Jan. 2000.

our system is based not on individual rights, but on group consciousness; not on equality of
citizenship, but on group preferences for non-citizens (including illegal immigrants) and for
certain categories of citizens; not on majority rule within constitutional limits, but on powersharing
by different ethnic, racial, gender, and linguistic groups; not on constitutional law, but on
transnational law; not on immigrants becoming Americans, but on migrants linked between
transnational communities; then the regime will cease to be “constitutional,” “liberal,”
“democratic,” and “American,” in the understood sense of those terms, but will become in reality
a new hybrid system that is “post-constitutional,” “post-liberal,” “post-democratic,” and “post-

This intracivilizational Western conflict between liberal democracy and transnational
progressivism began in the mid to late twentieth century; it accelerated after the Cold War and
should continue well into the twenty-first century. Indeed, from the fall of the Berlin Wall in
November 1989 until the attacks on the heart of the American republic on September 11, 2001,
the transnational progressives were on the offensive.

Since September 11, however, the forces supporting the liberal-democratic nation state
have rallied. Clearly, in the post-Sept. 11 milieu there is a window of opportunity for those who
favor a reaffirmation of the traditional norms of liberal-democratic patriotism. The political will
to seize this opportunity is unclear. Key areas to watch include official government policy
statements for the use of force and the conduct of war; the use and non-use of international law;
assimilation-immigration policy; border control; civic education in the public schools; and the
state of the patriotic narrative in popular culture.

Fourth Dimension?

I suggest that we add a fourth dimension to a conceptual framework of international
politics. Three dimensions are currently recognizable. First, there is traditional realpolitik, the
competition and conflict among nation-states (and supranational states such as the EU). Second is
the competition of civilizations conceptualized by Samuel Huntington. 38 Third, there is the
conflict between the democratic world and the undemocratic world. I am suggesting a fourth
dimension, the conflict within the democratic zone (and particularly within the West) between the
forces of liberal democracy and the forces of transnational progressivism, between democrats and

At one level, the fourth dimension amounts to a struggle between the American/Anglo-
American and the continental European models of governance-of what Western civilization ought
to be. The latter travels the road to a form of bureaucratic collectivism, the former emphasizes
the sometimes conflicting values of civic republicanism and the liberal values of openness and
individuality within a market-driven milieu. As John O’Sullivan and others have pointed out,
there are Europeans who support an entrepreneurial, liberal, Anglo-American style regime, and
there are many Americans (particularly among elites) who favor a more collectivist continental
European approach. 39

The conflicts and tensions within each of these four dimensions of international politics
are unfolding simultaneously and affected by each other, and so they all belong in a
comprehensive understanding of the world of the twenty-first century. In hindsight, Fukuyama
may have been wrong to suggest that liberal democracy is inevitably the final form of political
governance, the evolutionary endpoint of political philosophy, because it has become unclear that
liberal democracy can withstand its present internal challenges. Despite military and ideological
triumphs over national socialism and communism, powerful antidemocratic forces that were in a
38 Samuel Huntington, The Clash of Civilization and the Remaking of World Order (Touchstone 1998).
39 Chicago Journal of International Law, Fall 2000 issue on “AEI Conference: Trends in Global Governance.”

sense Western ideological heresies, Western liberal democracy will continue to face an
ideological-metaphysical challenge from powerful post-liberal democratic forces, whose origins
are Western, but, which could, in James Kurth’s word, be described as “post-Western.”