Thursday, April 30, 2009
Review of Koh Confirmation Hearing Transcript—Part 2 [Ed Whelan]
Now let’s examine (in this post and the next) some of Harold Koh’s statements at his softball hearing:
1. Koh asserts that “transnational legal process, which is an academic idea, just says what we all know, that we live in an interdependent world that’s growing increasingly more interdependent.” He calls it merely “a description of a world in which we live.”
But Koh’s transnational legal process is far more than a statement of the obvious point that “we live in an interdependent world.” It is Koh’s strategy for importing international and foreign law to override the traditional processes of American representative government. As Senator Lugar put it in his written question to Koh (Q10):
In a 2004 law article in the Berkeley Journal of International Law addressing this theory you wrote: “Some have asked me, ‘Is your notion of transnational legal process an academic theory? Is it an activist strategy? Or is it a blueprint for policy makers?’ Over time, my answer has become, ‘It is all three.’”
Consider, for example, Koh’s Stanford Law Review article “On American Exceptionalism” in which Koh says that his “preferred solution” to “American exceptionalism”—on First Amendment speech rights (see here and here) and much else—is “triggering transnational legal process.” And consider Koh’s discussion of the “six key agents in the transnational legal process” of the “internalization” of international law into domestic law. (Koh, “The 1998 Frankel Lecture: Bringing International Law Home,” 35 Hous. L. Rev. 623, 646-655 (1998).) Second on Koh’s list—after “transnational norm entrepreneurs”—are “governmental norm sponsors” who will “act as allies and sponsors for the norms [that transnational norm entrepreneurs] are promoting”:
Once engaged, these governmental norm sponsors work inside bureaucracies and governmental structures to promote the same changes inside organized government that nongovernmental norm entrepreneurs are urging from the outside. Not infrequently, officials within governments or intergovernmental organizations become so committed to using their official positions to promote normative positions that they become far more than passive sponsors but, rather, complementary “governmental norm entrepreneurs” in their own right.
As I have discussed, Koh, as State Department legal adviser, would clearly aim to be one of those governmental norm entrepreneurs.
2. Challenged by Senator Isakson about what the transnationalist constitutional game would yield, Koh contends that “[t]here’s certainly no campaign to shrink any provision of the Constitution” and that his views on First Amendment free speech protections were addressed to “how do we enter a treaty in which that free speech might be implicated”—with his answer supposedly having been to recommend a reservation to the treaty.
That’s certainly not what Koh was doing in his Stanford Law Review article “On American Exceptionalism.” Far from trying to protect First Amendment rights through a treaty reservation, Koh identified as the first of four “faces” of “American exceptionalism that he lists “in order of ascending opprobrium” America’s “distinctive rights culture,” which gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.” America’s “exceptional free speech tradition can cause problems abroad,” and the way for the “Supreme Court [to] moderate these conflicts” is “by applying more consistently the transnationalist approach to judicial interpretation” that Koh advocates—i.e., by redefining First Amendment guarantees to comport with foreign and international rules. (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1483 & n. 14 (2003).) As law professor Eugene Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.”
04/30 11:42 AM
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