Two Views of International Trade in the Constitutional Order

Cory Adkins’s and David Grewal take the historical recovery of constitutional political economy in the direction of international trade, exploring the changing constitutional status of trade agreements from the Founding Era to the present. Until the mid-twentieth century, international commercial agreements were passed as treaties, by two-thirds of the Senate; afterward, such agreements were repackaged as normal legislation; and more recently, “fast-tracked” as “congressional–executive agreements.” These agreements also have begun to reach deeply into domestic regulation, in fields like intellectual property, environmental regulation, and consumer protection. Adkins and Grewal examine what accounts for these transformations and what they mean for contemporary constitutional politics. Comparing the constitutional political-economic discourse of the Founders with that of today’s policy makers, they observe that amid important continuities, “one of the Founders’ major concerns has been left behind, namely that one region’s economic interests and institutions should not be aggressively undercut in promoting the interests of another.” The disappearance of this concern, Adkins and Grewal argue, coincides with an international policy that “now privileges the finance and technology sectors” on the two coasts and short shrifts “the decaying industrial heartland.” “Recovering what Forbath and Fishkin call the ‘constitution of opportunity,’” they suggest, “will require examining how these changes . . . have affected the capacity for self-government in the American republic.”