President and his people seem happy to ignore the constitutionalrnstructure. Something similar is now under way in internationalrnlaw.rnThe idea that we can proceed from the “implications” of SecurityrnCouncil actions and still act in a manner consistent withrnthe U.N. Charter is similar to the Supreme Court’s argumentrnregarding the unenimierated “right of privacy” which is said tornflow from “penumbras and emanations” of various items in thernBill of Rights. Thus, in 1973, in the heyday of expansive interpretationrnof constitutional law, the Supreme Court, in the notoriousrnRoe V. Wade decision, expanded the right of privacy intorna prohibition against states forbidding first-term abortions,rnand the “right” to secure an abortion became a part of the Constitution.rnOver the last few decades, the Supreme Court has recognizedrnso many such “rights” that it has set forth a “balancingrntest” which gives it complete discretion not only to create newrnrights but to limit others in the service of some purported constitutionalrngoal. Some scholars in American law reviews (therntraditional testing ground for radical American legal theories)rnhave suggested a similar balancing test for international law, inrnwhich the United Nations, or perhaps the International Courtrnof Justice, or now NATO, would balance the Charter’s guaranteesrnof territorial integrity, non-intervention, and staternsovereignty against the “fundamental human rights” of each individualrnand allow the latter to prevail over the former. This isrnprecisely what seems to be going on now.rnThe effect is that we can no longer rely on the “plain meaning”rnof the words of domestic or international law. For somerntime, this was the case in American civil-rights laws, whichrnclearly forbid all discrimination on the basis of race but werernread by federal agencies and many federal courts to require discriminationrnon the basis of race in order to favor the victims ofrnprior discrimination. Mercifully, the Supreme Court has recentlvrnrepudiated much of this “affirmative action” activit)’, inrnpart because it was encouraging the “balkanization” of thernAmerican polit)-. Having used a twisted version of domesticrnconstitutional law to “balkanize” America, we have now turnedrnour constitutional law jurisprudence on the Balkans themselves.rnNo one knows, of course, what precedential force our interventionrnin the Balkans will have, but the course ofrnAmerican constitutional law in the last generation has shownrnthat even the most egregious precedents are rarely overruledrnand that newly minted “rights” quickly generate others. Thisrnmay well be true in the case of “human rights” on an internationalrnscale. One can imagine future “preventive interventions”rnbased on quality of life and the extent to which expandedrn”fundamental human rights” are implemented. Much of thernrhetoric employed against Mr. Milosevic turns on his status as arndictator, and several writers in the law reviews have claimed thatrna basic component of “fundamental human rights” is popularrnsovereignty secured through democratic institutions. Anotherrncomponent is basic human dignity, including rights to shelter,rnfood, clothing, and even meaningful employment.rnIs it too far-fetched to imagine a time when interventionrnmight be justified if a country fails to provide three branches ofrngovernment, along the American model, with a SupremernCourt administering a plastic Constitution aided by Harvardrnand Yale professors? Could we justify armed intervention anyrntime women have second-class status, as is still true in many Islamicrnand African nations?rnThere are also disturbing redistributionist implications tornmuch academic and U.N. human-rights rhetoric, and it is easyrnto imagine a regime of private property being overthrown byrnarmed force on the basis of “fundamental human rights.” Thatrnexperiment has, of course, been tried in the Soviet Bloc nationsrnwith disturbing results. The essence of our Constitution, atrnleast in the minds of the Framers, was that it was an essentialrntool to protect both person and property, and our Bill of Rightsrnis heavy on the protection of property rights and light on whatrnare now regarded, in the international sphere, as “fundamentalrnhuman rights.” For the Framers, the most fundamental humanrnright was the exercise of self-government through one’s electedrnrepresentatives. The U.N. Charter nods in the direction of selfdeterminationrnand non-interference, but its ambiguity regardingrn”fundamental human rights” undercuts this assurance. Forrnthe last generation, the U.S. Supreme Court, in expansively interpretingrnthe Commerce Clause, the Bill of Rights, and thern14th Amendment, seriously restiicted state and local rights ofrnself-government. The risks of that happening on an internationalrnscale are real, and the erosion of national sovereignty isrnthe means.rnOur action in Kosovo erodes that sovereignty, as does cedingrncommand of U.S. forces to NATO or the United Nations. Thirtyrnyears ago, at Harvard Law School, a teacher could excite hisrnstudents by suggesting that we should all try to practice in thernarea of public international law because “the dew was still onrnthe grass.” It may be late afternoon now, and we ought to worryrnabout what might happen before nightfall. International lawrnhas always been messy, the Law of Nations has always been unclear,rnand national sovereignty, so valuable to us, is a fragile creationrnof the era of nation-states. It is only a few hundred yearsrnold, and it could easily perish. For most of human history, thernbasic principle of international relations was that “might makesrnright”; the idea of the sovereignty of individual nations, set forthrnin the work of the great civilian treatise writers on internationalrnlaw—Grotius, Pufendorf, Burlemaqui, and Vattel —was designedrnto secure for nations the right to govern themselves.rnEven the famously xenophobic English common law embracedrnthis attitude through the work of Blackstone and Mansfield,rnand it was incorporated in American law through suchrngreat Federalist judges as John Marshall, Joseph Story, andrnJames Kent.rnStatecraft has always required prudence, particularly wherernthere are no clear abstract principles for guidance. If sovereigntyrnis to be preserved, there will be a great need for such prudence,rnand a great need to resist the temptation to abuse ourrnmilitary power in the pursuit of chimerical and dangerous ends.rnWe must learn that we cannot seek to overturn every injustice,rnthat there are at least two sides to every argument, and that thernopportunities for disinformation and falsehood have multipliedrnexponentially in our “information age.” Accordingly, we oughtrnto proceed with extraordinary judgment, restraint, integrity, andrnan attention to our classic constitutional values, the most importantrnof which are the protection of property and self-government.rnThe risk of generating harmful precedents is horrific,rnand the costs of inconsistency are dreadful. If we attack Mr.rnMilosevic, especially in a manner that has little justification underrninternational law, but leave “fundamental human rights” violationsrnin Iraq or Tibet or East Timor or China untouched, wernmay do little for human rights in the long run and radically undercutrnsovereignty and the rule of law now. crn18/CHRONICLESrnrnrn