Wednesday, April 15, 2009
Harold Koh’s Transnationalism—Reinventing the Constitution (Part 1) [Ed Whelan]
The third primary mechanism (beyond customary international law and treaties) that Harold Koh and other transnationalists advocate to override fundamental American principles of government is the Supreme Court’s redefinition of constitutional provisions to comport with new rules of foreign and international law.
This practice is illegitimate and poses two severe threats. First, it threatens to erode fundamental rights, such as First Amendment speech protections, that are disfavored by European elites. Second, it threatens to shrink the realm of the operations of American representative government by inventing new constitutional “rights” that reflect selected contemporary foreign and international rules.
Let’s begin by documenting Koh’s position.
As part of his general case for what he contends to be the “more venerable strand of ‘transnationalist jurisprudence’” over the “blinkered view” of a “nationalist jurisprudence” (Koh, International Law as Part of Our Law, 98 Am. J. Int’l. L. 43, 48, 52 (2004)), Koh approvingly sets forth the transnationalist view that
domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system. In Justice Blackmun’s words, U.S. courts must look beyond narrow U.S. interests to the “mutual interests of all nations in a smoothly functioning international legal regime” and, whenever possible, should “consider if there is a course of action that furthers, rather than impedes, the development of an ordered international system.”
(98 Am. J. Int’l. L. at 53-54 (emphasis added).)
The distinction that nationalist justices draw between “legislative and constitutional drafting,” on the one hand, and “the task of judicial constitutional interpretation,” on the other, “makes no sense,” Koh argues:
Concepts like liberty, equality, and privacy are not exclusively American constitutional ideas but, rather, part and parcel of the global human rights movement. By their nature, human rights concepts evolve and “[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances.”
(98 Am. J. Int’l. L. at 54 (quoting Justice Breyer).)
Koh believes that it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” in “at least three situations”: (1) “when American legal rules seem to parallel those of other nations”; (2) when (quoting Breyer) “‘foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances’” and we can draw “empirical light” from their experience; and (3) “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard”. (98 Am. J. Int’l. L. at 45-46 (emphasis added).) As the italicized words signal, Koh embraces freewheeling resort to foreign and international law in constitutional interpretation.
[Tenth in a series focused on the domestic effect of Harold Koh’s transnationalism. The series does not address the additional dangers that Koh poses on national-security matters (which I’ve touched on here and here). Below is an outline of the series.
1. Overview of series
2. What “transnationalism” is
3. Customary international law
a. What customary international law is
b. The transnationalist game on customary international law
4. Treaties
a. The scope of the treaty power
b. The domestic legal status of treaties
c. CEDAW as a case study
(1) CEDAW and the CEDAW committee
(2) Koh’s remarkable testimony about CEDAW
d. The treaty game
5. Constitutional law
a. Reinventing the Constitution (Part 1): Koh’s positions
b. Reinventing the Constitution (Part 2): The flaws in Koh’s positions
c. Reinventing the Constitution (Part 3): What Koh’s positions threaten
d. The constitutional game
6. The role of the State Department legal adviser]
04/15 07:17 AM
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