Bench Memos

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.

[13th 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 (to come)]

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