Overcoming American Exceptionalism, with American democracy as collateral damage
By: Paul Mirengoff, Examiner Contributor
Sunday Reflection | 5/2/09 3:23 PM
It's an old Washington, DC axiom – if you want to know what an administration plans to do, look to the sub-cabinet level. And pay particular attention to the lawyers.
Today, these barometers point hard to the left. At the Justice Department, President Obama has nominated Dawn Johnsen to head the influential Office of Legal Counsel. Johnsen once comparedthe curtailment of a woman's ability to obtain an abortion to slavery, and has been at the forefront of the movement to limitthe executive's ability to wage war on terrorism.
Moreover, Tom Perez, the nominee to head the Justice Department's Civil Rights Division, is an advocate for illegal immigrants and an aggressive proponent of the use of racial quotas by professional schools.
But Obama's most radical sub-cabinet lawyer nominee is probably Harold Koh, the dean of Yale Law School, who has been tapped to serve as the State Department's legal advisor. For Koh is a leading exponent of the "trans-national" view of the law.
Ed Whelan, head of the Ethics and Public Policy Center, correctly characterizes legal trans-nationalism as a challenge to the view that international and domestic law are distinct, and that the United States determines for itself through its political branches whether international law is incorporated into its legal system.
Trans-nationalism thus represents a threat to American democracy. In our democracy, when U.S. military personnel combat our enemies, they are answerable, ultimately, only to the president elected by the American people.
In a trans-national regime, they are also answerable to the foreign judges who populate international tribunals, including judges from nations that share few of our values.
Similarly, under our democratic system the elected representatives of the American people, and the presidentially appointed American judges who interpret our laws, decide such "human rights" questions as which actions constitute race or gender discrimination against our citizens. Trans-nationalists would like "the international community" to have a binding say.
Liberals and conservatives disagree about such issues as the proper reach of anti-discrimination laws and hate crime laws, or what type of health care system we should have. Until recently, however, they have agreed that these issues should be decided through the American political process. American trans-nationalists reject that premise.
This must be because they do not trust the American people to support sufficiently liberal outcomes. Even the election of Barack Obama has not redeemed us; trans-nationalists continue to believe that Americans are in need of supervision by more sophisticated and progressive folks, namely European bureaucrats.
As Koh puts it, "as American lawyers, scholars, and activists, we should make better use of trans-national legal process to press our own government to avoid the most negative and damaging features of American exceptionalism." That's a fancy way of saying that on issues where Americans are too conservative for Koh's taste, we should defer to the rest of the world.
To this end, Koh has arguedthat "customary international law" (CIL) should be imported into our domestic law as federal common law. But, as professors Curtis Bradley and Jack Goldsmithhave shown, if CIL is federal common law, it must also be part of the "Laws of the United States" under the Supremacy Clause. 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 and Goldsmith also note that 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.
As Whelan shrewdly observes, Koh's push to import CIL into U.S. domestic law takes place at a time when CIL itself is undergoing a radical transformation. The traditional conception of customary international law held that it is "customary," -- the result of a general and consistent practice that states have followed from a sense of legal obligation.
But nowadays, according to Bradley and Goldsmith, CIL is created by United Nations resolutions, multilateral treaties, and other international pronouncements "without rigorous examination of whether these pronouncements reflect the actual practice of states." It is also "now viewed as regulating many matters that were traditionally regulated by domestic law alone, including a state's treatment of its own citizens."
The dynamic, free-wheeling, and "progressive" nature of CIL provides Koh an extra incentive to push for its importation into U.S. domestic law. So does the role law professors get to play.
Koh has writtenthat "academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments" are "interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law." Few of these players are identified in the United States Constitution as having the power to make or enforce our laws.
Koh has also supportedthe expansive use of "human rights" treaties to impose radical domestic social and economic policies formulated by foreign "supervisory committees" charged with interpreting these treaties. And he has called on our courtsto "play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law."
In other words, Koh advocates changing the meaning of constitutional provisions to comport more closely with the rules developed by foreign governments and international bodies.
As the State Department's legal advisor, Koh would be well positioned to facilitate the transfer of power from American voters to foreign bureaucrats. For his duties would include helping to formulate the legal positions the United States takes in federal court on questions of the role foreign law plays in our legal system.
President Obama's first 100 days have confirmed that he intends to subject America to a radical makeover. As our elected executive, it is his right to attempt this. But that quest should not be carried out anti-democratically by smuggling foreign law into our legal system. It follows that the Senate should not confirm Harold Koh.
Sunday Reflection contributor Paul Mirengoff is a lawyer in Washington, D.C., and a principal author of Powerlineblog.com.
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