NAFTA—the North American Free Trade Agreement—is not unlike the notorious star chamber, where the king and counsellors of medieval England secretly meted out justice without concern for precedent. If Congress approves NAFTA, George Bush’s proudest diplomatic achievement, Americans can expect a heavy dose of star-chamber-style justice in the 21st century.

For the average citizen, NAFTA is a formidable document. It extends some two thousand pages and reads with all the elegance of a mortgage contract. Behind the cumbersome sentences and passive verbs lie revolutionary concepts cloaked in innocuous words. At first glance, Article 20 (relating to dispute-settlement procedures) appears a harmless monument to the drafting skills of disciplined international lawyers. But a closer reading reveals the mischievous fingerprints of incremental internationalists, the modern-day gnomes of Switzerland who sit around Geneva drafting codes for the New World Economic Order. Indeed, the spirit of Geneva runs rampant at the U.S. Trade Representative’s Office in Washington. To write NAFTA, the gnomes of USTR drew heavily on dispute-resolution proposals advanced in the Uruguay Round deliberations of the General Agreement on Tariffs and Trade. Eager to rationalize and harmonize international trading practices, they have done the legal equivalent of reinventing the wheel. They have revived the medieval star chamber.

Instead of relying on an independent and impartial judicial system based on established law, NAFTA’s Article 20 gives extraordinary latitude to ad hoe dispute-settlement panels. NAFTA panels have authority to conduct hearings away from the glare of public opinion. Hearings, deliberations, and reports will all remain confidential, except to governments. Indeed, final panel reports need not be published. The five-member panels arc not composed of experienced and independent justices insulated from popular passions and politics, like United States courts. Instead, the panelists are appointees, selected from a roster of lawyers and trade experts, for temporary assignment. Most of them are individuals beholden to governments and special interests for future employment.

Nor does precedent bind their decisions. Mexican and American law have different origins. The former reflects the Napoleonic imprint of statutes; the latter, the English Common Law. Thus, there is no common body of law, except for the agreement, and Article 20 makes no reference to national precedents. The panels are thereby free to write and shape international trade law as their free spirits direct.

If the miserable experience of dispute-settlement panels in the Free Trade Agreement with Canada is any indicator, the panels will not hesitate to improvise and interpret the law as they choose. A similar United States-Canada panel recently demonstrated the extraordinary power of such bodies when it reinterpreted American countervailing duty law and reversed a Department of Commerce decision in a case involving swine imports from Canada. Had the ease gone to the United States Court of International Trade, not the binational panel, it would have been subjected to a narrower standard of review, with the court examining only whether the Department of Commerce had acted reasonably in applying the law.

Americans should not dismiss NAFTA panels as toothless tigers in the fictional jungle of international commercial law. For they may soon prevail over domestic courts and encroach on the authority of Congress and individual states. They may reapportion sovereignty between states and the federal government, upset the separation of powers among the three branches of federal government, and subordinate the independent federal judiciary to the law of NAFTA. Once a NAFIA panel submits its finding, governments party to the dispute must resolve the conflict either by removing measures not conforming to NAFTA or by paying compensation.

Article 20, in particular, has far-reaching implications for the 50 fates. Traditionally, as a result of the Tenth Amendment and its “commerce clause,” states have regulated banks and insurance companies and set standards for licensing services and professionals. As a consequence of NAFTA, they may soon have to treat Mexicans and Canadians the same as Americans as well as offer them equal opportunities to compete.

Another specific NAFTA provision. Annex 2004, has even more ominous significance. Annex 2004 allows a party to NAFTA to invoke dispute settlement when it believes a measure to be inconsistent with the agreement or an impairment to benefits it could reasonably have expected to accrue. In essence, if Mexico thinks one of the 50 states is doing something to hinder gains it might have anticipated, it can insist on dispute settlement—relying on the caprice of panels. Environmentalists and consumer activists, as well as conservatives, interpret this provision as a usurpation of state rights. Indeed, NAFTA could eliminate experimentation of any kind—liberal or conservative—at local levels in response to complaints from foreign citizens.

From a larger historical perspective, NAFTA is a classic example of how unelected officials can employ treaties and international agreements to modify the United States Constitution without the approval of three-fourths of state legislatures and two-thirds of Congress. Years ago both the Antifederalists and Ohio Senator John Bricker recognized this problem. At the end of the Constitutional Convention of 1787, Virginia delegate George Mason voiced apprehension that the Senate could “sell the whole country by means of Treaties.” (He overlooked presidential complicity.) Mason’s concern acquired real meaning in 1920 when the Supreme Court ruled in Missouri v. Holland that a treaty with Great Britain to regulate the flow of migratory birds overrode Tenth Amendment powers reserved to states.

A generation later in 1953, Bricker, a conservative Ohio Republican, placed the issue on the national agenda. He proposed a constitutional amendment declaring that treaties and executive agreements could become effective as internal law only when implemented through legislation valid in the absence of the treaty. Aimed at the excesses of internationalism and the United Nations system, Bricker’s amendment encountered vigorous opposition from President Dwight Eisenhower. Ike feared Bricker’s amendment would undercut presidential authority to conduct foreign affairs and so impair his efforts in the Cold War.

Forty years after Senator Bricker fought unsuccessfully to protect the states from executive usurpation, external conditions have changed. The Cold War seems over. Now, what John Adams termed the “spirit of Commerce” drives national policy. Policymakers in Washington, responding to the needs of Fortune 500 firms, promote access to global markets for goods, services, and investments. To guard against expropriation and other forms of discrimination, they seek binding dispute-settlement mechanisms involving binational panels, not local judiciaries. These incremental internationalists promote harmonization to vitiate parochialism and nationalism.

It is well-known that sauce for the goose is also sauce for the gander. In exchange for due process and impartial decision-making for American companies in Mexico, the diplomatic architects of economic internationalism offer like treatment for Mexicans in the United States. Mexican firms gain “national treatment” and the right to establish banks and insurance companies and to perform a host of services in the United States. Internationalists thereby cavalierly trade off domestic economic interests and constitutional rights to benefit large American investors eager to exploit opportunities in Mexico.

A persuasive case can be made for improving economic cooperation with Mexico. Indeed, without “help” from political leaders a single continental market is emerging of its own volition. NAFTA is not the solution. With its star-chamber-style dispute-settlement panels, NAFTA so mutilates the United States Constitution that a reputable lexicographer might insist on truthful labeling. Call it “SHAFTA.”