Ethics & Public Policy Center

Harold Koh’s Transnationalism

Published in National Review Online on April 16, 2009



[In a series of posts on National Review Online's Bench Memos blog that earned prominent attention, EPPC President Ed Whelan exposed the radical transnationalist views of controversial State Department legal adviser nominee Harold Koh.  Immediately below is the outline of the series, followed by Mr. Whelan's posts.]

1.  Harold Koh’s Transnationalism (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

Harold Koh’s Transnationalism

In a series of posts on Bench Memos over the next few days or so, I will explain how State Department nominee Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government and how Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage. In this introductory post, I provide a skeletal outline of the basic arguments that I will be making. (I may also call occasional attention on The Corner to new posts in the series.)

“Transnationalism” challenges the traditional American understanding that (in the summary, which I slightly adapt, of Duke law professor Curtis A. Bradley) “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.” Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.

Transnationalists have three primary mechanisms for their revolution. First, they advocate a new understanding of “customary international law” (or CIL) in which they and other international elites, rather than state practice, generate the norms of new CIL and in which those norms supposedly are binding as federal common law. Second, they favor an extravagant reading of the treaty power in which treaties are presumptively self-executing (i.e., applicable as domestic law) and the treaty power is boundless in its scope (i.e., treaties can address the full range of domestic policymaking and thereby supplant — and even go beyond the scope of — congressional legislation). Third, they urge the Supreme Court to reinvent the meaning of constitutional provisions to reflect selected contemporary foreign and international practices.  What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.

Koh is a leading advocate of transnationalism. Further, on the spectrum of transnationalists, ranging from those who are more modest and Americanist in their objectives and sympathies to those who are more extreme and internationalist (or Europeanist), Koh is definitely in the latter category. He is also very smart, savvy, determined, and dogmatic.

The position for which Koh has been nominated — the State Department’s top lawyer — would give him plenty of opportunities to implement his views. Among other things, he would be advising on the legal positions that the United States should be taking in federal courts on issues arguably implicating international law and before international bodies; he would be counseling State Department officials on international negotiations, treaty interpretation, and treaty implementation; and he would be a major player in interagency disputes on all these matters.

I don’t anticipate that my posts will cover other areas in which the Koh nomination ought to be of deep concern — including its impact on the Obama administration’s detainee policies and its understanding of the President’s foreign-affairs powers. But I suspect that Andy McCarthy and others will.

Harold Koh’s Transnationalism–What “Transnationalism” Is

What is “transnationalism” generally?  Well, let’s start by considering how two academics–one a critic of transnationalism, the other an ardent proponent–have described it.

Our first academic contrasts a “nationalist jurisprudence” with a “transnationalist jurisprudence.”  A nationalist jurisprudence “is characterized by commitments to territoriality, extreme deference to national executive power and political institutions, and resistance to comity or international law as meaningful constraints on national prerogatives.”  A nationalist jurisprudence “largely refuses to look beyond U.S. national interests when assessing the legality of extraterritorial action,” has “largely rejected international comity as a reason unilaterally to restrain the scope of U.S. regulation,” and “dismiss[es] treaty or customary international law rules as meaningful restraints upon U.S. action.”  Proponents of a nationalist jurisprudence view “foreign legal precedents” as “an impermissible imposition on the exercise of American sovereignty.”

“Unlike nationalist jurisprudence, which rejects foreign and international precedents,” continues this first academic, a “transnational jurisprudence assumes America’s political and economic interdependence with other nations operating within the international legal system.”  Distinguishing between domestic and international law makes no sense, since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.”  Transnational judges also don’t “distinguish sharply between the relevance of foreign and international law, recognizing that one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.”  For transnationalists, “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.”

Yes, that first academic is actually the ardent proponent of transnationalism, even though some of his statements might seem designed to persuade you that transnationalism is hooey.  In fact, the academic is State Department nominee (and Yale law school dean) Harold Koh himself (in “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 52-54 (2004) (emphasis added) and “The Globalization of Freedom,” 26 Yale L.J. 305 (2001)).

Let’s also consider the account provided by law professor Curtis A. Bradley (now of Duke), a prominent critic of transnationalism.  (Bradley’s 1999 article, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 530-531, uses the terms “monist” (or “internationalist”) and “dualist” for “transnationalist” and “nationalist,” respectively.)

As Bradley puts it, the pure transnationalist model is that “international and domestic law are part of the same legal order, international law [both treaties and customary international law] is automatically incorporated into each nation’s legal system, and international law is supreme over domestic law.”  (Bradley acknowledges that most transnationalists in practice don’t entirely embrace–not yet, at least–the pure version of the second and third features of this model.)

In determining the domestic status of international law, transnationalism “looks outward to the structure and content of international law.”  By contrast, under the nationalist view, “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”

Harold Koh’s Transnationalism–Customary International Law

Let’s now turn to the vehicles that transnationalists use to implement their agenda.  In this post and the next, I will explore the first of three such vehicles, as I discuss what customary international law (CIL) is and present the transnationalist view of the domestic status of CIL.  I draw the next two paragraphs from an important law-review article (which I will discuss more fully in the next post) jointly written by Curtis A. Bradley (now of Duke) and Jack L. Goldsmith (now of Harvard), “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”).

CIL and treaties are the two principal sources of international law.  “The traditional conception of CIL was that it resulted from ‘a general and consistent practice of states followed by them from a sense of legal obligation'” (quoting Restatement (Third) of the Foreign Relations Law of the United States)–in short, that CIL “was grounded in state consent.”  To ensure consent (as well as, it would seem to me, to ensure that a practice was indeed “customary”), “the passage of a substantial period of time was generally required before a practice could become legally binding” as CIL.  “CIL, like international law generally, primarily governed relations among nations, not the relations between a nation and its citizens.”  (Bradley & Goldsmith, at 838-839.)

“The post-World War II era has witnessed a dramatic transformation in the nature of CIL lawmaking.”  Most significantly, the new CIL is now less tied to state practice.  It is now generated from United Nations resolutions, multilateral treaties, and other international pronouncements “without rigorous examination of whether these pronouncements reflect the actual practice of states.”  Relatedly, the new CIL “can develop very rapidly.”  And it “is now viewed as regulating many matters that were traditionally regulated by domestic law alone.”  Specifically, the “human rights” norms that seem to be the product of a rapid and never-ending process of development “regulate a state’s treatment of its own citizens.”  (Bradley & Goldsmith, at 839-841.)

If the new CIL no longer arises from a general and consistent practice of states over a sufficient period of time to manifest state consent to a norm that has become customary, then who has gained the CIL-lawmaking power that states have lost?  The very folks who are invited to take part in the formation of United Nations resolutions, multilateral treaties, and other international pronouncements.  High on that list–surprise, surprise–are left-wing law professors like Harold Koh and “progressive” NGOs.  Indeed, Koh himself (in the course of trying to defend transnational law generally against the obvious charge that it is anti-democratic) lists “academics” <e
m>first and “nongovernmental organizations” second among the various parties–here’s his list:  “academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments”–who are “interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law.”  Koh, “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 56 (2004) (emphasis added).

Harold Koh’s Transnationalism–CIL as Federal Common Law

Let’s now explore the transnationalist position on the domestic status of “customary international law” (CIL).  (For the short version, see the last long paragraph of this post.)

The Supremacy Clause of the Constitution states that the Constitution itself “and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”  So while the Constitution specifically addresses the domestic status of treaties (a topic of a post to come), it doesn’t do so for CIL.  Indeed, the only provision of the Constitution that addresses CIL is the Article I provision (section 8, clause 10) that states that Congress has the power to “define and punish … Offenses against the Law of Nations.”  So that provision invites the sensible reading that it’s up to Congress to decide which rules of CIL to import into domestic law.

As law professors Curtis Bradley and Jack Goldsmith explain in their joint law-review article, “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”), CIL was long understood not to have the status of federal law.  But, they argue, as “the result of a combination of troubling developments, including mistaken interpretations of history, doctrinal bootstrapping by the Restatement (Third) of Foreign Relations Law, and academic fiat, CIL has since the 1980s come to be regarded as “federal common law.”  (Bradley & Goldsmith, at 821.)  Bradley and Goldsmith offer an extended critique of this “modern position.”

The Bradley/Goldsmith article triggered a vigorous response by Harold Koh, titled (bizarrely) “Is International Law Really State Law?,” 111 Harv. L. Rev. 1824 (1998), to which Bradley and Goldsmith replied (in “Federal Courts and the Incorporation of International Law,” 111 Harv. L. Rev. 2260 (1998) (“Bradley & Goldsmith Reply”)).  I won’t try the impossible task of presenting a full summary of the competing positions set forth over more than 100 pages (and more than 600 footnotes), and I instead refer interested readers to the articles.  But I’ll highlight key aspects here.

Remarkably, this new status as federal common law has been conferred on CIL at the very time that the traditional CIL has transmogrified from its derivation in state consent reflected in a general and consistent practice of states and from its governance of relations among nations to the new CIL, which flows rapidly from various international pronouncements and heavily regulates a state’s treatment of its own citizens.  (Bradley & Goldsmith, at 838-842; see my previous post for more.)

Bradley and Goldsmith spell out the logical, but largely overlooked, implications of the position that CIL is federal common law, including:

*  If CIL is federal common law, it would be part of the “Laws of the United States” under the Supremacy Clause (as the Supreme Court has previously understood federal common law).  As such, it would trump all inconsistent state law and lead to a “dramatic transfer of constitutional authority from the states to the world community and to the federal judiciary.”  (Bradley & Goldsmith, at 846-847.)

*  If CIL is federal common law, it would seem to follow that the president, under his Article II obligation to “take Care that the Laws be faithfully executed,” is bound by judicial interpretations of CIL and vulnerable to having CIL judicially enforced against him.  (Bradley & Goldsmith, at 844-846.)

Tellingly, in his 37-page article responding to Bradley and Goldsmith, Koh does not dispute the implications of CIL as federal common law for inconsistent state law.  On the contrary, insisting that “[i]nternational law is federal law,” he argues that “the capacity of the federal courts to incorporate customary international law into federal law–unless ousted by contrary [and subsequent] federal directive–is absolutely critical to maintaining the coherence of federal law in areas of international concern.”  (Koh, at 1838, 1861; see Koh, at 1835 n. 61.)

Koh himself reveals the stark consequences of his position as he complains that the Bradley/Goldsmith position that CIL is not federal common law would mean that “a treaty that is not ratified [by the United States], but that nevertheless announces important customary international law rules … need not be applied or respected by state courts or legislatures unless expressly executed by a statute or order emanating from the federal political branches.”  (Koh, at 1840.)  As Bradley and Goldsmith put it in reply to various passages of Koh’s like this, Koh is making the “extraordinary claim that if human rights treaty norms are accepted by much of the world community, the norms become CIL that is self-executing, supreme federal common law both before the United States has ratified the treaty and after it has ratified the treaty on the condition that the treaty norms will not apply as domestic federal law.”  (Bradley & Goldsmith Reply, at 2274.)  In other words, in Koh’s view, CIL applies as domestic American law even before the United States has ratified a treaty embodying CIL, even if the ratification is conditioned on the treaty’s not being self-executing (i.e., not having any domestic effect)–and even, as the logic flows, if the United States rejects the treaty.

Koh also does not clearly dispute that CIL, as federal common law, binds the president and may be judicially enforced against him.  In question-begging terms, he asserts that “controlling and valid presidential acts may supersede the application of customary international law rules” and refers neutrally to “the substantial scholarly debate that has raged over whether the President may or may not violate customary international law on the President’s own authority.”  (Koh, at 1835-1836 n. 61.) p>

So let’s look at the overall transnationalist game on customary international law:  The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them–for example, hate speech, health care, and various other economic, social, and cultural “rights.”  Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents.  The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office.  Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary.

Anyone perceive a threat to American principles of representative government?

P.S.:  For my carefully documented exposition of what Koh and other transnationalists are up to (with heavy reliance on their own words), I am now accused of “bringing the full crazy on Harold Koh,” of “nativist paranoia,” of supposedly ignoring the “difference between descriptive and normative arguments”–oh, sure, Koh is just being “descriptive”! and he’d just do a lot of describing at the State Department–of “pretty shameful attacks,” and much more.  Never mind that the name-caller hasn’t identified a single thing that I’ve gotten wrong, or that my positions are drawn from, and largely identical to, those of Professors Bradley and Goldsmith.  Such accusations sure are easier than engaging in actual argument.

Harold Koh’s Transnationalism–Scope of Treaties

[Given the unusual length of this post, I have boldfaced key passages.]

Let’s now turn to the second of the three primary vehicles that transnationalists like Harold Koh aim to use to override the ordinary processes of representative government under our Constitution:  an extravagant misuse of treaties.  In particular, I will focus in this post on (1) the transnationalist view of the scope of treaties and in upcoming posts on (2) the domestic legal status of treaties, and (3) the means for interpreting and implementing treaties.

Let me first offer a brief preface:  The traditional core role of treaties (until recent decades) has been to govern relations between nations, including how one nation treats citizens of another nation.  The Supreme Court has long distinguished between treaties that automatically have effect as domestic law (“self-executing” treaties) and those whose domestic legal effect depends on the enactment of implementing statutes (“non-self-executing treaties”).

As a purely descriptive matter:  Insofar as the United States resorts to treaties to govern relations between the federal and state governments, on the one hand, and American citizens, on the other, those treaties operate in the realm traditionally governed by the legislative powers of Congress and the states.  Insofar as such treaties make difficult or preclude contrary legislative action, they supplant the exercise of those ordinary legislative powers.  And insofar as the authority to interpret and implement treaties is transferred to international bodies, the ability of the American government to maintain and enforce the understanding of treaty meaning that governed its entry into the treaties is reduced.

Now let’s examine the transnationalist positions of Harold Koh on the scope of treaties.

As with customary international law, the subject matter of treaties has increasingly been dominated in recent decades by a broad range of so-called “human rights” matters–matters that relate to a nation’s treatment of its own citizens.  There are, of course, horrific violations of human rights in many parts of the world, and insofar as treaties are an effective means of curbing those violations–a contestable proposition, I suspect– they are obviously to be welcomed.  But the cachet of “human rights” can also be used as camouflage to advance policies on which reasonable people of good faith can and do have very different views–for example (to borrow from law professor Curtis Bradley’s and Jack Goldsmith’s list of expanding CIL norms), concerning the nature and scope of “a right to be free from expressions of ‘national, racial, or religious hatred,'” “the right to free choice of employment,” “the right to form and join trade unions,” “the right to free primary education, subject to a state’s available resources,” “the right to property,” “freedom from gender discrimination,” “the right to personal autonomy,” “the right to live in a democratic society,” and “rights relating to sexual orientation.”  (Bradley & Goldsmith, “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815, 841 & n. 171 (1997)).

Whether or not the Constitution’s treaty power permits the president to make treaties on matters of domestic social and economic policy, the expansive use of treaties on these matters is at odds, in two fundamental respects, with the basic system of representative government that the Constitution creates.  (Lest I be misunderstood:  I am not arguing here that such use is unconstitutional (though I am not rejecting that argument either); I am arguing, rather, that such use–especially in the case of self-executing treaties–disserves important constitutional values.)

First, the ordinary means of federal lawmaking requires approval of both Houses of Congress (and the president’s signature or congressional override of his veto).  Each House is designed to serve a different role.

As Madison explains the House of Representatives in Federalist No. 52:

As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this depen
dence and sympathy can be effectually secured

And in Federalist No. 54:

[T]he House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.

If treaties are self-executing (the position favored by Koh–as we shall see in the next post–and predominant among transnationalists), adopting domestic policy via the treaty route writes the House of Representatives out of the process entirely and disserves the “essential” values that Madison identified.  Even non-self-executing treaties on domestic policy matters create international legal obligations that place pressure on the House of Representatives to implement the new obligations domestically.  (It is precisely this sort of pressure that Koh advocates and celebrates:  “As American lawyers, scholars, and activists, we should make better use of transnational legal process to press our own government to avoid the most negative and damaging features of American exceptionalism”–namely, “U.S. insistence upon double standards,” of having “a different rule … apply to itself than applies to the rest of the world.”  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1486, 1501-1502 (2003).)

The use of treaties to adopt domestic policy also limits the role of the Senate.  In exercising its ordinary legislative role, the Senate has virtually unlimited freedom (within the bounds of the Constitution, of course) to craft and revise legislation.  By contrast, if a treaty that the State Department has negotiated and the president has agreed to is self-executing, then the Senate’s role is limited to (1) consenting to the treaty as is, (2) consenting to it with reservations, understandings, or declarations (though there is controversy over whether and when such conditions on consent are permissible), or (3) rejecting it.  (On the other hand, of course, the 2/3 requirement for Senate consent provides a higher bar than for ordinary legislation.)  And again, even the adoption of a non-self-executing treaty places pressure on the Senate (whose composition may have changed considerably since the adoption of the treaty) to implement the new obligations domestically.

Second, use of the treaty power to impose on the states international legal obligations on a broad array of matters of domestic policy tramples federalism and dilutes the Constitution’s commitment in Article IV that the “United States shall guarantee to every State in this Union a Republican Form of Government.”  Indeed, it’s accepted that a treaty (with or without implementing legislation) can impose obligations on the states that Congress couldn’t impose in the absence of the treaty.  The exercise of that power is far easier to justify for treaties that regulate our relations with other nations and their citizens than it is for treaties that legislate domestic policy.

Koh is an ardent champion of “human rights” treaties that regulate the relations between a nation and its own citizens on matters of domestic social and economic policy.  He has decried “double standards”–“when the United States proposes that a different rule should apply to itself than applies to the rest of the world”–as “the most dangerous and destructive form of American exceptionalism.”  “Recent well-known examples” of American “double standards,” according to Koh

include such diverse issues as the International Criminal Court, the Kyoto Protocol on Climate Change, executing juvenile offenders or persons with mental disabilities, declining to implement orders of the International Court of Justice with regard to the death penalty, or claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons. (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. at 1483, 1486.)

If there are any limits–beyond intrusions on recognized individual constitutional rights–that Koh would place on the legitimate and desirable use of the treaty power to regulate domestic social and economic policy, I have not yet run across them in his writings.  (I certainly don’t claim to have read everything Koh has written on the matter.  If any reader will call to my attention limits that Koh has embraced, I will supplement this post, consistent with my general practice of readily correcting any error that I become aware of.)

Indeed, I give Koh far too much credit in assuming that he would not favor use of the treaty power to intrude on–or to redefine into oblivion–recognized individual constitutional rights.  As law professor Eugene Volokh and I (here and here) have discussed, the first of four “faces” of “American exceptionalism that Koh lists “in order of ascending opprobrium” is 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.”  Fortunately, “[o]n examination,” Koh does “not find this distinctiveness too deeply unsettling to world order” or “fundamentally inconsistent with universal human values.”  (Whew, that was evidently a close call!)  So it can be “tolera[ted],” at least to some extent and at least under existing “European Union law”:

The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.(Koh, “On American Exceptionalism,” 55 Stan. L. Rev. at 1483.)

But, Koh warns in a footnote, “our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.”  The Supreme Court “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” (including of treaties) that Koh advocates.  (Koh, at 1483 n. 14.)

As
Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.”
  Koh may just be slightly more coy than the other very respected “internationalist legal scholar” whom Volokh quotes who openly celebrates the prospect that transnationalism “may point to the Constitution’s more complete subordination” to international norms.

Harold Koh’s Transnationalism–Domestic Legal Status of Treaties

Let’s now look at Harold Koh’s positions on the important question whether a treaty is self-executing or not.

As my immediately previous post on the scope of treaties explains, the Supreme Court has long distinguished between treaties that automatically have effect as domestic law (“self-executing” treaties) and those whose domestic legal effect depends on the enactment of implementing statutes (“non-self-executing treaties”).  For reasons that I explained, a treaty that is self-executing and that addresses matters of domestic social or economic policy is especially at odds with the basic system of representative government that the Constitution creates:   It entirely displaces the role of the House of Representatives in making domestic legislation (in violation of the “essential” values that James Madison identified), and, insofar as it imposes binding domestic obligations on the states, it tramples our system of federalism.

The Constitution of course provides that the Constitution itself, federal laws, and “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”  Why, one might ask, doesn’t this provision mean that all treaties automatically have effect as domestic law?  Why is there such a thing as a “non-self-executing” treaty?

The short (but longstanding) answer is that some treaties are read as stating that they don’t have effect as domestic law.  All nine justices in last year’s important Supreme Court decision in Medellin v. Texas agreed on this point, though they disagreed on how to determine whether a treaty should be so read.  Chief Justice Roberts’s majority opinion (for five justices, himself included) determined that a treaty is not self-executing (i.e., does not automatically have domestic legal effect) unless “the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on those terms.”  Both Justice Stevens (in his opinion concurring in the judgment) and Justice Breyer (in a dissent joined by Souter and Ginsburg) rejected “a presumption against self-execution” and concluded, based on their reading of the treaty in dispute (the Vienna Convention on Consular Relations), that it was self-executing.

Harold Koh’s own position appears to be far more hostile to non-self-executing treaties than any of the liberal justices.  According to law professor Curtis A. Bradley, Koh is among those commentators who “have challenged the general ability of the treaty-makers to render treaties non-self-executing”–who believe, in other words, that a treaty generally has automatic domestic legal effect.  (Bradley, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 542 n. 67 (1999).)  Specifically, Koh has stated:  “Many scholars question persuasively whether the United States declaration [that a particular treaty was not self-executing] has either domestic or international legal effect.”  (Koh, “Is International Law Really State Law?,” 111 Harv. L. Rev. 1824, 1828-1829 n. 24 (1998) (emphasis added).)  (If any reader will inform me that Koh has since taken a different position on this question elsewhere in his voluminous academic writings, I will supplement this post.)

Interestingly, Koh, as counsel for former American diplomats, submitted an amicus brief in Medellin that argued that the Vienna Convention was self-executing.  His sole evidence in support of that position:  “the State Department Legal Adviser testified before the Senate Committee on Foreign Relations that the Convention was entirely self-executing and ‘did not require implementing … legislation to come into force.'”  (Brief at 13 n. 9.)  So Koh gave authoritative weight to the testimony–in 1969–of the person whose position he has now been nominated to fill.

An important sidenote:  Koh’s academic writings frequently give important legal weight to the positions taken by the State Department legal adviser and by the Solicitor General.  If appointed State Department legal adviser, Koh would be closely counseling the Solicitor General on the positions that the United States should take in the courts on questions of international law.  Koh himself has highlighted how the “skill and maneuvering of particular well-positioned individuals, …serving as key institutional chokepoints,” can have inordinate influence on American positions on international law.  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1496 (2003).)  I’ll develop more fully in a later post the many ways in which Koh’s position as State Department legal adviser would enable him to advance his transnationalist agenda.

As Medellin’s 5-4 margin on the issue of non-self-execution indicates, the Supreme Court may well be one vote away from conferring domestic legal status much more freely on treaties.  Based on Koh’s record, there’s ample reason to believe that he will press hard to that end by various means, including by offering testimony that particular treaties are self-executing.  As illustrated by the four decades that passed between the testimony that Koh cited in his Medellin brief and the Court’s ruling, he would thereby be able to inflict damage for decades to come.

Harold Koh’s Transnationalism–Treaties: CEDAW as a Case Study (Part 1)

As an illustration of how transnationalists in general and Harold Koh in particular aim to use “human rights” treaties as covert vehicles for overriding the ordinary processes of representative government on basic matters of domestic social and economic policy, let’s consider CEDAW–the Convention on the Elimination of All Forms of Discrimination Against Women.

Nations that are party to CEDAW “agree to pursue by all appropriate means and withou
t delay a policy of eliminating discrimination against women.”  (Art. 2.)  The operative term “discrimination against women” is defined (in Art. 1) to mean:

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

The remaining provisions of CEDAW largely address various of the fields in which this grand principle shall operate.  In addition, Part V establishes a CEDAW committee “[f]or the purpose of considering the [ongoing] progress made in the implementation” of CEDAW.”

The United Nations General Assembly adopted CEDAW, and proposed it as an international treaty, in December 1979.  In July 1980, President Carter signed CEDAW on behalf of the United States.  The Senate, however, has never given its consent to CEDAW.  Pursuant to its terms, CEDAW became effective in September 1981 as an international treaty among those nations that had agreed to it.

By June 2002, when Harold Koh gave testimony before the Senate Foreign Relations Committee urging that the Senate consent to CEDAW, 169 nations had become parties to CEDAW.  By that same time, the CEDAW committee, exercising its supervisory role over the implementation of CEDAW, had issued a series of reports (styled “Concluding Observations”) interpreting the meaning of CEDAW.  Here are just a few of many available examples* of the CEDAW committee’s interpretations on issues involving abortion, prostitution, lesbianism, religion, Mother’s Day, “gender studies,” “redistribution of wealth,” comparable worth (not to be confused with equal pay),  and quotas:

Abortion (Mexico, May 14, 1998)
“408. The Committee recommends that the Government consider the advisability of revising the legislation criminalizing abortion and suggests that it weigh the possibility of authorizing the use of the RU486 contraceptive, which is cheap and easy to use, as soon as it becomes available.”

“426. The Committee recommends that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”

Abortion (Colombia, Feb. 5, 1999)
“393. The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. No exceptions are made to that prohibition, including where the mother’s life is in danger or to safeguard her physical or mental health or in cases where the mother has been raped. The Committee is also concerned that women who seek treatment for induced abortions, women who seek an illegal abortion and the doctors who perform them are subject to prosecution. The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention.”

Abortion (Italy, Aug. 12, 1997)
“353. The Committee expressed particular concern with regard to the limited availability of abortion services for women in southern Italy, as a result of the high incidence of conscientious objection among doctors and hospital personnel.”

Prostitution (China, Feb. 5, 1999)
“288. The Committee is concerned that prostitution, which is often a result of poverty and economic deprivation, is illegal in China.”

“289. The Committee recommends decriminalization of prostitution.

Lesbianism (Kyrgyzstan, Feb. 5, 1999)

“128. The Committee recommends that lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished.”

Religion (Ireland, June 25, 1999)
“180. The Committee notes that although Ireland is a secular State, the influence of the Church is strongly felt not only in attitudes and stereotypes but also in official State policy. In particular, women’s right to health, including reproductive health, is compromised by this influence.”

Mother’s Day (Belarus, Feb. 4, 2000)
“361. The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles. It is also concerned whether the introduction of human rights and gender education aimed at countering such stereotyping is being effectively implemented.”

“Gender Studies” (Austria, June 30, 2000)
“232. … The Committee also calls upon the Government to introduce affirmative action to increase the appointment of women to academic posts at all levels and to integrate gender studies and feminist research in university curricula and research programmes.”

“Redistribution of wealth” (Mexico, May 14, 1998)

“403. … In view of the relatively high growth levels of the Mexican economy that have been mentioned, the Committee would welcome a more equitable redistribution of wealth among the population.”

Comparable worth (Denmark, Jan. 31, 1997)

“267. Temporary special measures should be maintained and strengthened, particularly in the areas of reducing unemployment among women; ensuring that women and men receive equal pay for work of equal value; increasing women’s participation in private-sector decision-making; increasing the number of female university
professors and researchers; and encouraging men to devote more time to child care and housework. Such initiatives should include quantitative targets, time limits for their achievement, specific measures and sufficient budgetary resources.”

Quotas (Austria, June 30, 2000)
“238. The Committee is concerned at the decrease in women’s representation in the legislature in the recent elections. The Committee recommends that the Government undertake in this respect temporary special measures, in accordance with article 4, paragraph 1, of the Convention, and consider, inter alia, the use of federal funding for political parties as an incentive for the increased representation of women in Parliament, as well as the application of quotas and numerical goals and measurable targets aimed at increasing women’s political participation.”

 * Concluding Observations of the CEDAW committee are available on this United Nations website.  (Click on CEDAW, then on Concluding Observations/Comments.)  I have drawn my quotations directly from that website.  In addition to the examples I provide, a list of roughly 200 other examples of striking interpretations by the CEDAW committee is organized by subject here.  (I have not cross-checked that entire list against the United Nations database; I’ll note also that the list uses a slightly different dating system–evidently, date of committee meeting on particular country rather than date of report–for the CEDAW committee’s Concluding Observations.)

Harold Koh’s Transnationalism–Treaties: CEDAW as a Case Study (Part 2)

[Given the unusual length of this post, I have boldfaced key passages.]

In June 2002, Harold Koh testified before the Senate Foreign Relations Committee to urge that the Senate give its consent to CEDAW.  He then expanded and revised his testimony into a law-review article.  (Koh, “Why America Should Ratify the Women’s Rights Treaty (CEDAW),” 34 Case W. Res. J. Int’l L. 263 (2002).)  Let’s look at several aspects of what Koh said in his testimony–and, even more remarkably, what he didn’t say.

First are Koh’s reasons for supporting CEDAW.  Lamenting that the United States “is now the only established industrialized democracy in the world that has not ratified the CEDAW treaty,” Koh declares that “this is a national disgrace for a country that views itself as a world leader on human rights.”  U.S. ratification is needed for “two simple reasons”:  “First, ratification would make an important global statement regarding the seriousness of our national commitment to these issues [of women's human rights].  Second, ratification would have a major impact in ensuring both the appearance and the reality that our national practices fully satisfy or exceed international standards.”  (Emphasis added.)

Second, Koh opposes virtually all the conditions on ratification that previous administrations–including the Clinton administration in which he served–had proposed.  Although he doesn’t say so specifically in his testimony, the conditions that he opposes include, most importantly, the declaration that CEDAW is non-self-executing–i.e., that it would have no domestic legal effect.  (Koh’s law-review article makes this clear.  See 34 Case W. Res. J. Int’l L. at 271.)   In his testimony, Koh states that the “only” condition that “seems to me advisable to protect the integrity of our national law” is one specific understanding on free speech.  In his law-review article, that condition is the only one that “is even arguably advisable.”  (34 Case W. Res. J. Int’l L. at 271 (emphasis added).)

Third, Koh briskly dismisses “some myths and fallacies” about CEDAW.  For example, it’s “flatly untrue,” he says, that “CEDAW supports abortion rights.”  “To the contrary, on its face, the CEDAW treaty itself is neutral on abortion,” and “several countries in which abortion is illegal–among them Ireland, Rwanda, and Burkina Faso–have ratified CEDAW.”  Also, “some have falsely suggested that ratification of CEDAW would require decriminalization of prostitution,” but “the text of the treaty is to the contrary.”  And among other “preposterous” claims is that CEDAW “would somehow require the United States to abolish Mother’s Day.”

Most striking about Koh’s testimony is his utter failure even to acknowledge, much less confront, the CEDAW committee’s interpretations of CEDAW on abortion, prostitution, and, yes, even Mother’s Day (as well as on a broad range of other issues).  As I outlined in my previous post, by the time of Koh’s testimony, the CEDAW committee had already offered these interpretations of CEDAW on abortion:

Abortion (Mexico, May 14, 1998)
“408. The Committee recommends that the Government consider the advisability of revising the legislation criminalizing abortion and suggests that it weigh the possibility of authorizing the use of the RU486 contraceptive, which is cheap and easy to use, as soon as it becomes available.”

“426. The Committee recommends that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.”

Abortion (Colombia, Feb. 5, 1999)

“393. The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. No exceptions are made to that prohibition, including where the mother’s life is in danger or to safeguard her physical or mental health or in cases where the mother has been raped. The Committee is also concerned that women who seek treatment for induced abortions, women who seek an illegal abortion and the doctors who perform them are su
bject to prosecution. The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of article 12 of the Convention.”

Abortion (Italy, Aug. 12, 1997)
“353. The Committee expressed particular concern with regard to the limited availability of abortion services for women in southern Italy, as a result of the high incidence of conscientious objection among doctors and hospital personnel.”

If, as Koh testifies, “on its face, the CEDAW treaty itself is neutral on abortion,” that fact ought to make it imperative to address the CEDAW committee’s contrary interpretations.

Worse, Koh presents Ireland’s ratification of CEDAW as supposed proof that CEDAW is “neutral on abortion.”  But Koh somehow doesn’t see fit to call to the attention of the Senate Foreign Relations Committee the inconvenient fact that in June 1999, in yet another of its Concluding Observations, the CEDAW committee stated that it “is concerned that, with very limited exceptions, abortion remains illegal in Ireland” and that it “urge[d] the Government [of Ireland] to facilitate a national dialogue on women’s reproductive rights, including on the restrictive abortion laws.”  (¶¶ 185, 186.)

Likewise on the issue of prostitution:  Koh doesn’t inform his audience that the CEDAW committee had (in February 1999) expressed its concern that prostitution is illegal in China and recommended decriminalization of prostitution.  (¶¶ 288, 289.)

As for the “preposterous” claim that CEDAW “would somehow require the United States to abolish Mother’s Day”:  That claim is based squarely on this statement made by the CEDAW committee to Belarus in February 2000:  “The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles.”  (¶ 361.)

In his testimony, Koh doesn’t acknowledge this CEDAW committee statement and instead claims that “CEDAW’s central aim is to support motherhood”–non sequitur alert!–“by promoting women’s freedom to make choices on an equal basis with men.”

In his law-review article (34 Case W. Res. J. Int’l L. at 274-275 n. 51 (emphasis added)), Koh finally acknowledges the CEDAW committee’s report on Belarus and tries to spin its statement this way:

[The CEDAW committee's statement] spoke negatively about a Belarusian holiday that discouraged women from working in the marketplace, by celebrating and encouraging only those mothers who work in the home.  Rather than denigrating motherhood, the CEDAW’s central aim is to support motherhood, by promoting women’s freedom to make choices on an equal basis with men.  Nothing in that goal conflicts with the American tradition of celebrating both Mother’s Day and Father’s Day every year, as expressions of this country’s commitment to full gender equality, consistent with the nondiscrimination goals of the CEDAW.

The trusting reader wouldn’t know that the “Belurusian holiday” was in fact “Mothers’ Day,” nor would he know that nothing in the CEDAW committee’s statement substantiates Koh’s assertion that the generic “Mothers’ Day” holiday in fact “celebrat[ed] and encourage[ed] only those mothers who work in the home.”  Further, only the distrustful, skeptical reader would note that Koh’s lawyerly closing phrase–“consistent with the nondiscrimination goals of the CEDAW”–makes his entire assurance question-begging:  the open issue is whether, under the CEDAW committee’s reading, the “American tradition of celebrating both Mother’s Day and Father’s Day every year” is consistent with those goals.

Koh suggests that it is “preposterous” that anyone, in the name of “eliminating discrimination against women,” would do away with Mother’s Day in the United States.  What sort of unhinged ideological fanatic, he insinuates, would ever propose something so cockamamie?  Well, how about the ACLU activist who recommended way back in 1974 (see point 5 here) that “Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles”?  You may even have heard of her.  Her name was Ruth Bader Ginsburg.

Why, one must ask, did Koh not address the CEDAW committee’s interpretations at all in his testimony to the Senate Judiciary Committee?  Let’s consider the three theoretical possibilities.

The first possibility is that Koh was unaware of the CEDAW committee’s interpretations at the time of his testimony.  There’s compelling evidence against that proposition.  For starters, the CEDAW committee’s interpretations were, for obvious reasons, a leading part of the case of the opponents of CEDAW.  Only an utterly incompetent and ill-informed advocate of CEDAW–not a brilliant scholar who had “studied and argued for ratification of [CEDAW] for more than a decade,” both in his academic capacity and as a senior State Department official in the Clinton administration–would have been unaware of them.  Further, Koh himself refers to supposed “myths and fallacies that have been circulated” about CEDAW, and his law-review article appends to this proposition a footnote referring the reader to “a typical compendium of such objections,” Patrick F. Fagan’s February 2001 “How U.N. Conventions on Women’s and Children’s Rights Undermine Family, Religion, and Sovereignty“–a document that is replete with references to the CEDAW committee’s interpretations.  The possibility that Koh first became aware of this document and of other “typical” documents of the sort in the period between his testimony and publication of his law-review article is beyond farfetched.  And that preposterous possibility also wouldn’t explain why, apart from the single Belarus example, Koh does not discuss the CEDAW committee’s interpretations in his law-review article.

The second possibility is that Koh regarded the CEDAW committee’s interpretations as so patently insignificant that they weren’t worth mentioning.  The evidence also seems clearly to foreclose that possibility. >  When Koh in his law-review article tries (unsuccessfully) to explain away the CEDAW committee’s statement on Belarus and Mother’s Day, he doesn’t argue that the CEDAW committee’s interpretations of CEDAW are entitled to no weight. 

Further, in the amicus brief that Koh submitted as counsel of record in the Supreme Court in Lawrence v. Texas in January 2003 (a mere seven months after his testimony before the Senate Foreign Relations Committee), Koh emphasized the interpretive authority of the CEDAW committee in support of his argument that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.” (Brief at 24-25 (emphasis added).)  He cites two of the CEDAW committee’s “Concluding Observations”* in support of that proposition (Brief at 25 n. 49), and his brief cites five other “Concluding Observations” of other treaty committees.  Further, such interpretations are a critical part of the “transnational legal process” that Koh urges “American lawyers, scholars, and activists” to “make better use of”:  “Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.”  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1502 (2003) (emphasis in original).)

The only remaining possible explanation that I can see for Koh’s failure in his Senate Foreign Relations Committee testimony to address the CEDAW committee’s interpretations of CEDAW is that Koh deliberately chose not to be–let’s put the matter as delicately as possible–forthright with the members of the committee and the public generally.  Given the exclusion of the first two possibilities, that explanation would seem logically compelled.

* The two Concluding Observations of the CEDAW committee that Koh cited in his Lawrence v. Texas amicus brief as “interpret[ations]” of CEDAW by its “supervisory organ[]” are of the same nature as the Concluding Observations that he declined to call to the attention of the Senate Foreign Relations Committee in his testimony:  One states (in the case of Kyrgyzstan) that the “Committee recommends that lesbianism be reconceptualized as a sexual orientation and that penalties for its practice be abolished,” and the other (in the case of Sweden) states that the “Committee commends the Government for passing legislation that provides residence permits to individuals who have a well-founded fear of persecution on the basis of sexual orientation or gender, particularly in cases that involve discrimination against women.”

Harold Koh’s Transnationalism–The Treaty Game


Drawing on my four preceding posts on treaties (on the scope of the treaty power, the domestic legal status of treaties, CEDAW, and Harold Koh’s, er, less than forthright testimony on CEDAW), let’s bring the pieces of the puzzle together to expose Harold Koh’s transnationalist game on treaties.  (I will not repeat in this summary the supporting material for my propositions, but anyone who wishes to take issue with them should look to my underlying posts.)

The expansive use of “human rights” treaties–treaties that regulate a nation’s treatment of its own citizens–to impose domestic social and economic policies is at odds with the basic system of representative government that the Constitution creates.  That conflict is all the starker when “human rights” treaties are self-executing (i.e., have automatic effect as domestic law).  Harold Koh is an ardent champion of the use of “human rights” treaties, and he is hostile to the very notion that such treaties might or can be non-self-executing.

American transnationalists like Koh use a bait-and-switch game on “human rights” treaties.  In urging that the United States adopt the treaties, they hide behind the treaty’s grand and sweeping statement of a seemingly unobjectionable principle.  Focused on the supposed concerns of a hypothetical world community, they trumpet the need for the United States to make an “important global statement” and to show that “our national practices fully satisfy or exceed international standards.”  Meanwhile, at the same time as the supervisory committee established by the treaty is interpreting the treaty to advance a radical agenda, American transnationalists obscure or dissemble about what the treaty committee is doing when they are speaking to the Senate and the American public–and then they turn around and use its interpretations to advance their agenda in courts.

If Koh’s transnationalist game on treaties were followed, the United States would blindly embrace “human rights” treaties, and the Senate would consent to those treaties without declaring them to be non-self-executing.  As the treaty committee and other international bodies interpret those treaties in radical ways, activists would then run to American and international courts to have those interpretations imposed on the American government.  Rather than having policy made through our representatives in the national and state legislatures, American citizens would have forfeited their powers of representative government to international lawyers and American and foreign judges.

The interaction between the transnationalist misuse of treaties and the two other leading transnationalist mechanisms–customary international law and American constitutional law–makes matters even worse.  Even if the United States doesn’t ratify a treaty, transnationalists will see in the widespread international adoption of a treaty the emergence of new norms of customary international law that, they will argue to American courts, are binding on the United States as federal common law.  And (as my next posts will explain) transnationalist judges, at the urging of transnationalist activists, will rely on unratified treaties to reinvent what provisions of the Constitution mean
.

Harold Koh’s Transnationalism–Reinventing the Constitution (Part 1)

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.

Harold Koh’s Transnationalism–Reinventing the Constitution (Part 2)


Now that I’ve set forth Koh’s position on redefining the American Constitution to comport with new rules of foreign and international law, let’s consider its merits.

What is most striking–and, in a limited sense, refreshing–about Koh’s position is how brazen it is, compared, say, to that of Justices Ginsburg and Breyer, who base their reliance on foreign and international laws on fuzzy grounds (“we can learn from others,” “our people in this country are not that much different than people other places”).  (I’ve addressed the flaws in Ginsburg’s and Breyer’s positions in this essay and in my July 2005 House of Representatives testimony, both of which apply in large measure to Koh’s arguments.)  Koh is explicit in stating that he wants American courts to “play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.”  American courts, of course, cannot revise the “rules of foreign and international law,” so the “coordinating” that Koh has in mind requires that American courts, and especially the Supreme Court, change the meaning of constitutional provisions to comport more closely with the ever-evolving rules of foreign and international law.  In other words, what Koh calls “coordinating” is really subordinating the Constitution to international norms.

Koh argues that this role is necessary “not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.”  But in our constitutional system, it is up to the political branches–Congress and the president–to make foreign policy and to determine whether, and to what extent, American domestic law should be coordinated with rules of foreign and international law.  It is their job, not that of the courts, to determine whether and how it is in our national interest “to advance the broader development of a well-functioning international judicial system.”  (And it is also their job, not the free-floating job of the courts, “to promote American aims.”)  There is nothing necessary about the judicial role that Koh advocates, and there is nothing appropriate about it.

Koh fails to establish his historical claim that the transnationalist mode of constitutional interpretation is “venerable.”  Koh tries to attribute to Chief Justice Marshall a resort to international law in interpreting the Constitution.  According to Koh:

In McCulloch v. Maryland, Chief Justice Marshall suggested that mankind’s views are also relevant to the task of constitutional interpretation, noting
:

If any one proposition could command the universal assent of mankind, we might expect it would be this–that the government of the Union, though limited in its powers, is supreme within its sphere of action….

(98 Am. J. Int’l. L. at 45 (emphasis in original).)

This argument is simply silly.  By the clause that Koh italicizes, Marshall means merely that the proposition is logically compelled, as the immediately following sentence–“This would seem to result, necessarily, from its nature”–makes clear.  Marshall is not in fact invoking the views of foreigners as to the powers of the American government, nor is he maintaining that all Chinese, Russians, Spaniards, and Africans in 1819 held any view, much less a uniform view, on that matter.

Koh also cites the Supreme Court’s previous recognition that “the concept of ‘ordered liberty’ is not uniquely American but, rather, is ‘enshrined’ in the legal history of ‘English-speaking peoples,’ as well as other legal systems.”  But inquiry into the “legal history of ‘English-speaking peoples'” is appropriate in determining the original meaning of constitutional provisions; it in no way supports reliance on contemporary foreign and international legal materials in changing constitutional meaning. And the only example Koh comes up with for his reference to “other legal systems” is an Eighth Amendment death-penalty case that makes no reference to “ordered liberty” and that was rendered in 1986.  Similarly, his claim that “the Court has long since recognized that the relevant communities to be consulted [when ‘a U.S. constitutional concept, by its own terms, implicitly refers to a community standard'] include those outside our shores” rests entirely on cases from the Warren Court forward.  (98 Am. J. Int’l. L. at 45-46.)

Koh also can’t explain how a foreign or international court’s decision on how a foreign or international law measures up to a foreign or international charter has any analytical value in interpreting the meaning of our Constitution.

In sum, Koh’s case for the transnationalist approach to constitutional interpretation fails on all fronts.

Harold Koh’s Transnationalism–Reinventing the Constitution (Part 3)

Koh’s own writings amply prove the dual threats that his transnationalist approach to constitutional interpretation poses.

Consider, first, the threatened erosion of cherished constitutional rights.  (I’m repeating this point from a previous post.)  As law professor Eugene Volokh and I (here and here) have discussed, the first of four “faces” of “American exceptionalism that Koh lists “in order of ascending opprobrium” is 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.”  Fortunately, “[o]n examination,” Koh does “not find this distinctiveness too deeply unsettling to world order” or “fundamentally inconsistent with universal human values.”  (Whew, that was evidently a close call!)  So it can be “tolera[ted],” at least to some extent and at least under existing “European Union law”:

The judicial doctrine of “margin of appreciation,” familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness. (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1483 (2003).)

But, Koh warns in a footnote, “our exceptional free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.”  The Supreme Court “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that Koh advocates.  (Koh, at 1483 n. 14.)

As Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.”  Koh may just be slightly more coy than the other very respected “internationalist legal scholar” whom Volokh quotes who openly celebrates the prospect that transnationalism “may point to the Constitution’s more complete subordination” to international norms.  (Emphasis added.)

Consider, second, the transnationalist invention of new rights.  Koh believes that foreign and international law supports the conclusion that the death penalty always violates the federal Constitution:  “The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty.  For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.”  (Koh, “Paying ‘Decent Respect’ to World Opinion on the Death Penalty,” 35 U.C. Davis L. Rev. 1085, 1129 (2002).)  Set aside Koh’s risible appeal to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law.  (Justice Ginsburg has tried the same trick, as I discussed in this essay).  The permissibility of the death penalty is presupposed by numerous constitutional provisions.  Anyone who will use foreign and international legal materials to find the death penalty unconstitutional can and will use those materials to reach any conclusion he wants.

Indeed, Koh himself filed an amicus brief in Lawrence v. Texas that argued that international and foreign court decisions compelled the Supreme Court to strike down as unconstitutional Texas’s ban on homosexual sodomy.  And Koh also submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage:  “the principles of human dignity and autonomy that are the essence of the modern right-protecting democracy demand that civil marriage be available to all couples and that the equality of all citizens triumph over historical attitudes.”

Harold Koh’s Transnationalism–The Constitutional Game

As my preceding three posts (here, here, and here) make clear, Harold Koh’s transnationalist game on constitutional interpretation is as brazen as it is illegitimate as it is threatening.

When Koh says that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law,” the only way for the Supreme Court to do that “coordinating” is to subordinate the real American Constitution to ever-evolving rules of foreign and international law.  (The Supreme Court and other American courts obviously have no power to achieve the “coordinating” by altering the rules of foreign and international law.)  These rules include the new version of customary international law that, unlike the traditional version, is not tied to actual customary state practice but is instead generated rapidly by transnationalist activists through various international pronouncements.  These rules also include proliferating “human rights” treaties (like CEDAW)–whether or not the United States has ratified or even signed them–that in fact address a broad array of domestic social and economic policies that in our system are the proper province of the ordinary lawmaking processes.

The subordination of the Constitution to international law norms is the Holy Grail of transnationalists because, difficult as it would be for American citizens to overcome the transnationalist games on customary international law and treaties, it would be impossible, short of the cumbersome process of constitutional amendment, for us to overcome the constitutional game.

If you imagine that Koh’s position as State Department legal adviser wouldn’t enable him to advance the constitutional game, think again.  Koh would be advising the Solicitor General on every Supreme Court brief that Koh believed provided an opportunity for the Court to redefine constitutional provisions in accord with international law norms.  And the five living-constitutionalist justices on the Court are very ready to avail themselves of the political cover that the Obama administration will give them.  That’s illustrated by this report of Justice Ginsburg’s recent comments (in the paraphrase of the reporter) defending “looking to the holdings of foreign courts to inform the Supreme Court’s decisions” and contending that her ruling striking down the Virginia Military Institute’s single-sex status was “less about forcing change than making sure the law reflects the change that society has sanctioned”:

“Who brought the challenge to VMI?” [Ginsburg] reminded. “Not some liberal group out there but the U.S. government.”

With Koh as a leading voice of the U.S. government on constitutional issues, you should be even more alarmed than usual about what the Supreme Court might do.

Harold Koh’s Transnationalism–The Role of the State Department Legal Adviser

The position for which Koh has been nominated–State Department legal adviser–would provide him a cornucopia of opportunities to advance and implement his dangerous transnationalist views.

On an everyday basis, Koh’s job would be to advise the Justice Department on the legal positions that the United States ought to be taking in federal courts on the virtually limitless set of issues that he believes implicate international law and in cases that affect foreign relations.  He would help determine the legal positions that the United States would be taking before international bodies and in international conferences.  He would counsel government officials on international negotiations, treaty interpretation, and treaty implementation.  Koh would be a major player in interagency disputes on all these matters, and his expertise, savvy, and tenacity make it likely that he would have exceptional influence.

If you don’t believe me, take Koh’s own word for it.  Koh himself has highlighted how the “skill and maneuvering of particular well-positioned individuals, …serving as key institutional chokepoints,” can have inordinate influence on American positions on international law.  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1496 (2003).)  As State Department legal adviser, Koh would make himself one of those chokepoints.

Further, 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. (Koh, 35 Hous. L. Rev. at 648.)

Given Koh’s fervent commitment to his
transnationalist views, it’s a sure bet that Koh, as State Department legal adviser, would work “inside [the] bureaucracies and governmental structures” of the United States government “to promote the same changes inside organized government” that he has long been “urging from the outside” in his activist capacity as a “transnational norm entrepreneur.”  He would be “so committed to using [his] official position[] to promote normative positions” that he would become a powerful “governmental norm entrepreneur” in his own right.

But wouldn’t anyone else that President Obama nominates for this position be equally bad?  Not at all.  Among the dozens (if not hundreds) of lawyers who are amply qualified (by narrow objective criteria) for the position of State Department legal adviser and who broadly share President Obama’s internationalist outlook, Harold Koh is very likely the worst possible pick.  And even with a generous allowance for deference to the president’s ability to select his own advisers, Koh’s radical transnationalist views–and his apparent willingness to resort to deception to advance them–place him well beyond the bounds of what United States senators, and the American people, should consider tolerable.

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