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.

[Eleventh 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