The World Trade Constitution

Authors

John O. McGinnis
Mark L. Movsesian, St. John's University School of LawFollow

Document Type

Article

Publication Title

Harvard Law Review

Publication Date

2000

Volume

114

First Page

511

Abstract

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power as the better means to resolve the difficult problem of covert protectionism. They develop a series of procedure-oriented tests that would permit WTO tribunals to invalidate covert protectionism without supplanting national judgments on labor, environmental, health, and safety policies. Finally, they demonstrate that the WTO's emerging approach to the problem of covert protectionism largely comports with the democracy-reinforcing jurisprudence they recommend, and they offer some suggestions for reforms that would help prevent the organization from going astray in the future.