Boston Globe, June 22, 2000
Knight-Ridder/Tribune Media Services, June 20, 2000
Baltimore Sun, June 23, 2000
The Supreme Court's unanimous decision yesterday to strike down the Massachusetts Burma law says more about the pro-business bias of the present Court than it does about the legal principles involved in the case.
The Massachusetts selective purchasing law made it hard for companies that do business in Burma to win contracts from the state. It is difficult to see what is wrong with that. After all, our law respects the concept of consumer sovereignty: as individuals, we are free to vote with our dollars and refuse to buy anything from any company that we dislike.
Shouldn't the State of Massachusetts have the same right?
Justice David Souter, writing for the Court, said no. For him, the Massachusetts Burma law would "compromise the very capacity of the President to speak for the Nation with one voice in dealing with other governments."
Well, maybe so. But then, so does the First Amendment to the Constitution. What would the Court have done if Massachusetts had passed a resolution condemning Burma's military government for gross human rights violations? If all 50 states were to pass such resolutions, they might "undermine the President's capacity. . . for effective diplomacy," as Souter said about the Massachusetts law. Would the states therefore be forced to rescind such resolutions?
The 1996 Massachusetts law was intended to support the movement for democracy in Burma, also known as Myanmar. The country is ruled by a military government that seized power in 1990, after opposition party candidates won more than 80% of the contested seats in parliament. The newly elected representatives were arrested. The military government is internationally condemned for political murders and imprisonment, burning of villages, forced labor, and forced relocation of hundreds of thousands of people.
A few months after Massachusetts passed its law, Congress authorized federal sanctions against Burma. Although Congress expressed no intent to preempt the Massachusetts law, the Supreme Court somehow found that it did.
The argument that states are constitutionally excluded from participation in foreign affairs is weak. As Justice Scalia noted during oral arguments, the Constitution's specific prohibitions against state involvement in wars and treaties "would all be unnecessary if there was some overriding, unexpressed principle in the Constitution that states can't get involved in foreign policy."
Souter's concern about the President speaking "for the Nation with one voice" echoes arguments made by the lawyer for the National Foreign Trade Council, the consortium of more than 600 companies that won this case. "As trade becomes more important, it becomes more important for Congress to speak with one voice."
That "one voice" is the voice of big business, with the federal government increasingly acting as a mere echo chamber. Even worse, our government is working overtime to stifle dissent by transferring power from elected officials to unaccountable, supra-national institutions.
One of those institutions is the World Trade Organization. The Court's opinion specifically cites the complaint that the European Union and Japan have brought against the Massachusetts law at the WTO, as part of the foreign policy problem that the law had created. The multi-national corporations that challenged this law also stressed the conflict with WTO rules, and the WTO case was clearly a factor in the Court's decision.
The Court's decision therefore has implications for state and local laws throughout the country that deal with public purchasing. These include preferences based on human rights, labor standards, or even environmental standards such as recycled material in government-purchased goods. Many of these laws are incompatible with WTO rules, and could lead to similar challenges in federal court.
That is why Attorneys General from 22 states, as well as 78 members of Congress, local governments, and dozens of non-profit organizations joined briefs in defense of the Massachusetts law.
It's getting to be a formulaic plot: on the one side, everyone who has a stake in democracy, human rights, or moral values. On the other, the relentless pursuit of that "single, unconscionable freedom-- free trade."
So it's sad to see the whole Supreme Court line up unanimously on the side of big business. The Court was never called upon to rule on the legality of the sanctions adopted in the 1980s, by 25 states and 164 local governments, against the apartheid regime of South Africa. But the implication of this decision is that the anti-apartheid laws, on which the Massachusetts Burma law was modeled, would also have been overturned.
Of course the anti-apartheid sanctions were adopted before agreements like NAFTA and the WTO had established the supremacy of trade over all other human concerns.
Welcome to the New World Order.