panelists are appointees, selected from arnroster of lawyers and trade experts, forrntemporary assignment. Most of themrnare individuals beholden to governmentsrnand speeial interests for futurernemployment.rnNor does precedent bind their decisions.rnMexican and American law haverndifferent origins. The former reflectsrnthe Napoleonic imprint of statutes;rnthe latter, the English Common Law.rnThus, there is no common bodv of law,rnexcept for the agreement, and Articlern20 makes no reference to nationalrnprecedents. The panels are thereby freernto write and shape international tradernlaw as their free spirits direct.rnIf the miserable experience of dispute-rnsettlement panels in the FreernTrade Agreement with Canada is anyrnindicator, the panels will not hesitate tornimprovise and interpret the law as theyrnchoose. A similar United States-Canadarnpanel recently demonstrated the extraordinaryrnpower of such bodies whenrnit reinterpreted American countervailingrnduty law and reversed a Departmentrnof Commerce decision in a case involvingrnswine imports from Canada. Hadrnthe ease gone to the United StatesrnCourt of International Trade, not thernbinational panel, it would have beenrnsubjected to a narrower standard of review,rnwith the court examining onlyrnwhether the Department of Commercernhad acted reasonably in applying thernlaw.rnAmericans should not dismiss NAFTArnpanels as toothless tigers in the fictionalrnjungle of international commercialrnlaw. For they may soon prevail overrndomestic courts and encroach on thernauthority of Congress and individualrnstates. They may reapportion sovereigntyrnbetween states and the federalrngovernment, upset the separation ofrnpowers among the three branches ofrnfederal government, and subordinaternthe independent federal judiciary to thernlaw of NAF’IA. Once a NAFIA panelrnsubmits its finding, governments partyrnto the dispute must resolve the conflictrneither by removing measures not conformingrnto NAFTy or by paying compensation.rnArticle 20, in particular, has farreachingrnimplications for the 50 fates.rnTraditionally, as a result of the TenthrnAmendment and its “commercernclause,” states have regulated banks andrninsurance companies and set standardsrnfor licensing services and professionals.rnAs a consecjucnee of NAFTA, they mayrnsoon have to treat Mexicans and Canadiansrnthe same as Americans as well asrnoffer them equal opportunities to compete.rnAnother specific NAFTA provision.rnAnnex 2004, has even more ominousrnsignificance. Annex 2004 allows a partyrnto NAFTA to invoke dispute settlementrnwhen it believes a measure to be inconsistentrnwith the agreement or an impairmentrnto benefits it could reasonablyrnhave expected to accrue. In essence, ifrnMexico thinks one of the 50 states isrndoing something to hinder gains itrnmight have anticipated, it can insist onrndispute settlement—relying on therncaprice of panels. Enxironmentalists andrnconsumer activists, as well as conservatives,rninterpret this provision as arnusurpation of state rights. Indeed, NAFTArncould eliminate experimentation ofrnany kind—liberal or conservative—atrnlocal levels in response to complaintsrnfrom foreign citizens.rnFrom a larger historical perspective,rnNAFTA is a classic example of how unelectedrnofficials can employ treaties andrninternational agreements to modify thernUnited States Constitution without thernapproval of three-fourths of state legislaturesrnand two-thirds of Congress.rnYears ago both the Antifedcralists andrnOhio Senator John Bricker recognizedrnthis problem. At the end of the ConstitutionalrnConvention of 1787, Virginiarndelegate George Mason voiced apprehensionrnthat the Senate could “sell thernwhole country by means of Treaties.”rn(He overlooked presidential complicity.)rnMason’s concern acquired realrnmeaning in 1920 when the SupremernCourt ruled in Missouri v. Holland thatrna treaty with Great Britain to regulaternthe flow of migratorv birds overrodernTenth Amendment powers reserved tornstates.rnA generation later in 1953, Bricker, arnconservative Ohio Republican, placedrnthe issue on the national agenda. Hernproposed a constitutional amendmentrndeclaring that treaties and executivernagreements could become effective asrninternal law only when implementedrnthrough legislation valid in the absencernof the treaty. Aimed at the excesses ofrninternationalism and the United Nationsrnsystem, Bricker’s amendment encounteredrnvigorous opposition fromrnPresident Dwight Eisenhower. Ikernfeared Bricker’s amendment would undercutrnpresidential authority to conductrnforeign affairs and so impair his effortsrnin the Cold Wir.rnForty years after Senator Brickerrnfought unsuccessfully to protect thernstates from executive usurpation, externalrnconditions have changed. The ColdrnWar seems over. Now, what JohnrnAdams termed the “spirit of Commerce”rndrives national policy. Policymakersrnin Washington, responding tornthe needs of Fortune 500 firms, promoternaccess to global markets for goods, services,rnand investments. To guard againstrnexpropriation and other forms of discrimination,rnthey seek binding disputesettlementrnmechanisms involving binationalrnpanels, not local judiciaries.rnThese incremental internationalists promoternharmonization to vitiate parochialismrnand nationalism.rnIt is well-known that sauce for therngoose is also sauce for the gander. Inrnexchange for due process and impartialrndecision-making for American companiesrnin Mexico, the diplomatic architectsrnof economic internationalism offerrnlike treatment for Mexicans in the UnitedrnStates. Mexican firms gain “nationalrntreatment” and the right to establishrnbanks and insurance companies and tornperform a host of services in the UnitedrnStates. Internationalists thereby cavalierlyrntrade off domestic economic interestsrnand constitutional rights to benefitrnlarge American investors eager tornexploit opportunities in Mexico.rnA persuasive case can be made forrnimproving economic cooperation withrnMexico. Indeed, without “help” fromrnpolitical leaders a single continentalrnmarket is emerging of its own volition.rnNAFTA is not the solution. With itsrnstar-chamber-style dispute-settlementrnpanels, NyF7A so mutilates the UnitedrnStates Constitution that a reputable lexicographerrnmight insist on truthful labeling.rnCall it “SHAFTA.”rn—Alfred E. EckesrnOBITER DICTA: This month we arernhappy to report on the publication of arncouple of books by Chronicles contributorsrnJohn Shelton Reed and Kit Reed.rnJohn Shelton Reed’s My lears SpoiledrnMy Aim and Other Reflections on SouthernrnCulture was recently released by thernUniversity of Missouri Press. A professorrnof sociology at the University of NorthrnCarolina, Chapel Hill, Mr. Reed hasrnbeen a corresponding editor for Chroniclesrnfor several years. Following on thern6/CHRONICLESrnrnrn