Constitutional convergence, international law, and … local government law?

Wherever there is government, there is by definition also constitutional law, in the sense of a set of legal rules, practices, and institutions that define and allocate public power. Everyone knows that constitutional law is not a phenomenon that occurs exclusively at the nation-state level. But that does not mean we are always mindful of all the levels at which constitutional law is generated. In the United States, the tendency is to focus on federal and state constitutional law; likewise, in Europe, the focus is on the law of the member states and that of regional bodies such as the European Union and the Council of Europe. But the full range of jurisdictions that possess what can be called constitutional law is wider than that. At one extreme is a city charter; at the opposite extreme is the United Nations Charter.

An increasingly evident phenomenon is the breakdown in the traditional distinctions between these levels: consider, for example, the increasing tendency of international law to impose both rights and responsibilities upon individuals as opposed to states. As these distinctions break down, it becomes easier for bodies of constitutional law at different levels of the hierarchy to influence, and even converge with, one another. But it is rare to observe direct interaction between bodies of law at distant levels of the hierarchy: it is not customary to see local governments, for example, responding directly to international legal mandates. The hierarchy itself mediates the impact that different levels have upon one another.

It cannot be taken for granted, however, that this hierarchy will continue to insulate the constitutional law of non-contiguous jurisdictions. In its own truly characteristic, why-am-I-not-totally-surprised-this-is-happening-in-Berkeley way, the City of Berkeley is demonstrating the possibility of level-skipping influence between non-contiguous jurisdictions. It has announced its intention to comply with United Nations human rights treaties, a development that the UN appears to welcome.

Here are some highlights from the story reported by both the UN Wire and the San Francisco Chronicle:

“Berkeley would become the first city in the United States to independently try to comply with U.N. treaties on torture, civil rights and racial discrimination, if the City Council passes a measure on the issue tonight.

The measure would require the city to file biennial reports to the United Nations on how – or whether – the city meets international human rights standards. In Berkeley, that could include its record on homelessness, the achievement gap among different racial groups at Berkeley High and the presence of John Yoo, a UC Berkeley School of Law professor and Berkeley resident who authored the Bush administration’s justification for torture. …

Berkeley would be the first city in the country, and possibly the world, to submit its compliance records to the United Nations, said Yves Sorokobi, a U.N. spokesman in New York.

‘We welcome citizen participation in trying to uphold these treaties, but in general they are directed toward countries,’ he said. Berkeley ‘has taken the lead here.’ …

Some on the City Council said they’re not sure Berkeley needs to comply with treaties to which the United States has already agreed. … There’s also the possibility that Berkeley might not be in compliance with the treaties, a potential embarrassment for a city that prides itself on civil rights and progressive politics.”

Your move, Cambridge, Massachusetts.