We are invited to reflect on the relationship between law and empire, and in particular on whether the tradition of international law teaches any broad lessons applicable to the present day. I come before you as a specialist on the American Founding, and my simple contention is that the outlook of America's founding generation does contain those lessons.

That outlook was deeply internationalist in ways that are often unrecognized. The founders spent a lot of time thinking about the characteristic problems of cooperation among states, especially within the context of their own union. They saw as dangerous any situation in which one power was in a position to give the law to the others. They believed that respect for law would inevitably be in profound tension with over-sized power. They accepted the normative legitimacy of an international system in which the little had equal rights with the great. And they demonstrated the value of checks and balances on power with their unprecedented federal constitution. [See David C. Hendrickson, Peace Pact: The Lost World of the American Founding (University Press of Kansas, 2003).]

When the framers gathered at Philadelphia in the late spring of 1787, they stood high stop a ridge, on either side of which there lay an imposing and dangerous abyss. On one side was "empire," "consolidation," "despotism," "centralization"; on the other, "anarchy," "dissolution," "chaos," "disintegration." These terms were not mere abstractions but carried historical resonance. The former recalled for them a succession of images: the expansion and corruption of Rome; the mad search for universal monarchy by a line of continental European monarchies; the sinister views of a British court that had attempted to foist on the American provinces, via taxation by a distant Parliament, a condition supposedly akin to absolute slavery.

"Anarchy" and "disunion" had a comparable, though opposing, significance. The fatal consequences to which anarchy might lead could be seen in the rise and fall of the unions made by the Greek city-states of antiquity to secure their liberty; in the civil wars and foreign interventions of Italy during the Renaissance; in the endless internal dissensions and wars of the Holy Roman Empire; and perhaps most of all in the experience of the modern European state system. American thought was heavily imbued with equilibrist notions of all sorts, but in the operation of the old European system they saw nothing but danger. "The system of the balance of power," wrote one Federalist, "affected to smother the breath of universal monarchy," but it had "in fact organized the system of universal slavery."

Most accounts of early American thought treat diplomacy and constitutionalism as two separate worlds; I argue that they had much in common and were mutually inter-related and supporting. This interpenetration of the constitutional and diplomatic worlds is well illustrated by the words of Charles Sumner: "The comity of nations I respect. To the behests of the law of nations I profoundly bow," Sumner observed. "As in our domestic affairs, all acts are brought to the Constitution, as to a touchstone; so, in our foreign affairs, all acts are brought to the touchstone of the law of nations--that supreme law--the world's collected will--which overarches the grand Commonwealth of Christian States. What that forbids I forbear to do."

The early generation of American statesmen had drunk deeply of the writings of the expositors of the "law of nature and of nations"--Grotius, Pufendorf, Vattel--and they saw the American Republic entering a world of states whose mutual relations were to be regulated by an authoritative law. The humane expositors of that law in Holland, France, and Switzerland had, in the words of Patrick Henry, "held up the torch of science to a benighted world." From 1776 onward, appeal to the law of nature and of nations—and to "these kind instructors of human nature"--was woven closely into the fabric of the American position, and might even be mistaken for being the American position. The expositors of the law of nations rejected what was then called "Machiavellism"—the sort of unmatched cruelties and perfidious violations of good faith with which Machiavelli's name became closely identified but which, as Jefferson said, had been "exploded and held in just horror in the 18th century."

This complex of thought is of keen relevance to the contemporary moment. It is not unreasonable to insist that the avoidance of international anarchy and the creation of a peaceful order through law was a deep part of the original understanding, even if the project was initially confined to eastern North America. The 20th century assumption of that role, though representing an obvious departure in certain respects from the traditional American policy, represented in another sense its fulfillment. At the same time, one finds in the outlook of the founders a clear and definitive rejection of universal empire, and we ought to reflect on the significance of that rejection for our own day.

The last several years have witnessed the emergence in the United States of a distinctly imperial attitude. In its pure form, the Bush Doctrine has asserted the right to wage preventive war against "rogue states" and terrorists who seek to acquire weapons of mass destruction. It has assumed that the United States has a right, perhaps even a duty, to overturn tyrannical governments through force and to institute democracy. It has averred that America's condition of undisputed strategic superiority would be maintained indefinitely. Finally, it has breathed a spirit of defiance toward the constraints imposed by international law and institutions. While none of these elements of the Bush Doctrine was entirely missing from previous U.S. administrations, the total package was certainly new and alarming. It suggested that that we had entered a new age in which one state is more equal than others and where the weak must abide by the rules but the powerful may disregard them.

It is often asserted that there is no precedent for the mix of awesome military capabilities and revolutionary strategic doctrines now possessed by the United States. But in fact there is one. It lies in what Jonathan Schell calls the "hoary old nightmare of the ages, the always-feared but never-realized ambition to win universal empire." Whereas "empire," in its ordinary signification, means political control, whether direct or indirect, that is exercised by one political unit over another unit separate from and alien to it, "universal empire" means control over the state system as a whole. More simply, empire is ruling over other peoples without their consent, while universal empire is ruling over the state system without its consent. Both are exercises in domination, which is usually the key attribute that users of the label have in mind, but they are very different in significance. Empires are a dime a dozen, scattered all throughout human history; the quest for universal empire occurs less frequently but is the more important and world-shattering phenomenon.

Though not in common usage today, the term "universal empire" is useful because it gives us imaginative access to a critique of the phenomenon that was once part of the American consensus and that speaks to certain enduring issues. The critique of "Monarchia Universalis" was advanced by a remarkable group of Spanish writers, including Vitoria, Las Casas, and Soto, in the 16th century, and was taken up avidly by a host of Enlightement thinkers in the 18th century. Montesquieu, Vattel, Hume, Robertson, Burke, and Gibbon all considered the theme, and were as one in regarding universal empire as, in Alexander Hamilton's words, a "hideous project." The prevention of a situation in which any one power could give the law to the others was thought by the classic writers to be a necessary underpinning of international society, and they all looked with dread on the condition of supreme power to which the Bush administration aspired. Whether in western constitutional thought or among the publicists of the law of nations, it was axiomatic that any situation of unbounded power held peril for the maintenance of both order and liberty. While conceding that universal empire had a certain irresistible and siren-like appeal, the classical writers believed that the enterprise would inevitably recoil upon its authors. David Hume traced out, as had Montesquieu, a natural process by which aggrandizement turned on itself: "thus human nature checks itself in its airy elevation; thus ambition blindly labours for the destruction of the conqueror." "Unlimited power is in itself a bad and dangerous thing," as Tocqueville summarized the classic wisdom: "Human beings are not competent to exercise it with discretion."

Of all these various bids for universal empire, the one bearing the closest analogy in ideological complexion to that of the contemporary United States is that which occurred in conjunction with the French Revolution and the wars that erupted in its train. It has it all: a strategic doctrine of preventive war, a revolutionary creed looking to liberate foreign peoples from tyranny, contempt for the society of states and its customary prohibitions, and a military machine that had, with the levee en masse, discovered sources of power hitherto unknown. The essential features of this colossal power were described by Alexander Hamilton in the late 1790s. Revolutionary France, in Hamilton's estimation, had “betrayed a spirit of universal domination; an opinion that she had a right to be the legislatrix of nations; that they are all bound to submit to her mandates, to take from her their moral, political, and religious creeds; that her plastic and regenerating hand is to mould them into whatever shape she thinks fit; and that her interest is to be the sole measure of the rights of the rest of the world." Here, in capsule form, are all the essential symptoms of the dread disease, the historic check-list for detecting the malady of universal empire. Altogether familiar to denizens of the 21st century is the charge that Hamilton brought against France, for it is the same charge now brought against America.

Our contemporary situation thus bears us back, ceaselessly against the tide, to an argument announced at the founding of the American experiment. From the vantage point of the political science of the American founders, U.S. hyperpower today must appear as inherently problematic and fraught with peril. If we are to be true to the legacy bequeathed by the founders, we must reabsorb the lesson that power needs restraint. Especially because domestic constraints on the war making power of the executive have weakened, we must look to those embodied in international law and institutions as an essential underpinning of America's world role.

There is of course an objection to my line of argument, which holds that acting within these constraints is fundamentally incompatible with vital national interests. To so act, say the advocates of an "America unbound," would leave us insecure and more exposed to attack. I deny this. Indeed, one cannot fail to have been struck, as the Bush administration crashed through various legal barriers over the past several years, that the law contains within itself lessons of a prudential character. The restraints imposed by law are often seen as artificial or idealistic, whereas on a deeper view they help us identify where the path of self-interest really lies. Can anyone doubt that, on any calculation of costs and benefits, the torture to which the Bush administration has given license has wounded rather than strengthened this country? Such a question might also be asked of the doctrines of preventive war that have overturned the Cold War strategies of containment and deterrence.

We are far down a road in which the first question asked of any legal restraint is how we can get round it, whereas the truer view is that the prohibitions embodied in law themselves reflect certain vital prudential lessons drawn from hard and painful experience. We ought to respect these restraints for the same reason we pay attention to guard rails and speed limits on a mountain road. They prevent us from going off the cliff.

David C. Hendrickson is a member of the Coalition for a Realistic Foreign Policy, and a professor of political science at Colorado College. These remarks were prepared for the panel "International Law in Times of Empire," American Society of International Law, Washington, D.C., April 1, 2005. Citations are available on request to dhendrickson@coloradocollege.edu.