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.”
[Twelfth 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
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 (to come)
6. The role of the State Department legal adviser (to come)]