Harold Koh, Judge-Made Foreign Policy, and Redistribution of Wealth

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Today’s Washington Post carries this op-ed by Duke law professor Curtis A. Bradley and Harvard law professor Jack L.Goldsmith criticizing a recent court ruling that expanded aiding-and-abetting liability under the Alien Tort Statute of 1789 to saddle American corporations that did business with apartheid-era South Africa with massive liability for South Africa’s human rights violations during that era.  According to Bradley and Goldsmith, the current South African government opposed the litigation, as did the Bush administration, citing the risk of adverse foreign-policy consequences.  Nonetheless, a federal district court “supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.”  In so doing, the court also exposed these corporations to “crass retroactivity” by subjecting them to legal liability for transactions that were not within the scope of aiding-and-abetting liability at the time they took place.

As Bradley and Goldsmith point out, now that Harold Koh is slated to be State Department legal adviser, it’s unlikely that the Obama administration will seek reversal of rulings like this.  Koh, “an intellectual architect and champion of the post-1980 human rights litigation explosion[, …] joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”  (Koh, presumably, would recuse himself from any involvement as a governmental actor in this particular case.) 

Even beyond basic questions of who properly makes American foreign policy and beyond concerns of fairness, American corporations and their shareholders, customers, and employees—in short, most Americans—ought to recognize their strong interest in not having Koh keep the floodgates open to litigation of this sort.  It’s worth noting that among those who have countervailing economic interests are the outside law firms that make a killing representing corporate defendants in Alien Tort Statute actions. 

This Day in Liberal Judicial Activism—April 19

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1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.”  The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties.  “The river as plaintiff speaks for the ecological unit of life that is part of it.”  The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.”  “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing.  Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.   

Santorum on Filibuster “Folly”

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Former Senator Rick Santorum says Republican Senators should stop talking about potential filibusters of Obama judicial nominees, according to this report.  Such talk is “folly,” he says, because there is no chance of any filibuster effort actually succeeding.  Getting Republican Senators to make judicial nominations a priority will be hard enough as it is, he cautions.

This Day in Liberal Judicial Activism—April 18

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1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment.  Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Week for April 7, 1969).  And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.   

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

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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.

[This is the 14th—and perhaps last—post 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]

A Truly Fein Mess of an Argument

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Now “chairman” of something called the “American Freedom Agenda,” the increasingly ridiculous Bruce Fein attacks Justice Clarence Thomas in the letters column of the New York Times today.  What is the cause of his ire?  He’s upset at “Thomas’s deprecation of ‘rights’ or ‘grievances’ in favor of ‘obligations’ and ‘responsibilities.’”

Fein is responding to a story that ran a few days ago in the Times, reporting on a visit Thomas paid to a bunch of high school kids who’d won an essay contest sponsored by the Bill of Rights Institute.  Leaving aside reporter Adam Liptak’s characterizations of what Thomas said, here are all the actual quotations of Thomas to which Fein was reacting:

“Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights.”

“I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

He gave examples: “It seems that many have come to think that each of us is owed prosperity and a certain standard of living. They’re owed air-conditioning, cars, telephones, televisions.”

Those are luxuries, Justice Thomas said.

Fein’s reaction?  This is “counterhistorical and counterconstitutional.”  This “abandon[s] reverence for rights and respect for grievances,” and thus “dishonor[s] the Republic envisioned by the founding fathers.”

Um, yeah, I could see those points, if Thomas had actually been talking about the real rights that are enshrined in the Constitution.  But he wasn’t, as any fool can see by reading the passage above.  He was talking to high school kids, and telling them to get over themselves, and that they shouldn’t believe the world owes them everything it may strike their fancy to desire.  This honors the true spirit of our founding.  The “proliferation of rights” having no basis in our fundamental law and constitutional principles is what dishonors that spirit.

Fein even has the gall to throw the Declaration of Independence in Justice Thomas’s face.  Yes, that would be Clarence Thomas, the Supreme Court justice who, more than any other in living memory, has thought, spoken, and written, on and off the bench, about the vital principles of the the Declaration as the foundation of our constitutional order.

Time for Bruce Fein to teach his grandma to suck eggs.

There He Goes Again!

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Douglas Kmiec, at Politico, defends President Obama’s upcoming appearance at Notre Dame’s commencement.  I have a reply to Kmiec at Moral Accountability.

Souter Speculation

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It appears that Justice Souter has yet to hire any clerks for the next Supreme Court term, leading to speculation that he may step down at the end of this one in June.

This Day in Liberal Judicial Activism—April 16

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2008—Even by Justice Stevens’s high standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange.  Stevens rambles on for some nine pages (slip op. 8-17) explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment.  But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees with the Chief Justice that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment. 

Justice Scalia, in addition to joining Justice Thomas’s opinion concurring in the judgment, writes a brief opinion responding to Stevens’s folly.  As Scalia says of Stevens’s ultimate reliance on his “own experience”:  “Purer expression cannot be found of the principle of rule by judicial fiat.”

Okay, Maybe This Belongs on Media Blog

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Three guesses what newspaper produced this editorial-in-a-news-headline: “Vote in Doubt as New Hampshire Senate Takes Up Gay Marriage.”  Aw, you looked at the hyperlink, didn’t you?  Cheater.

Horton Hears a Who!—But It’s Imaginary

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The lefty blogosphere appears to be abuzz over law professor Scott Horton’s claim that “Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions”—namely, OLC nominee Dawn Johnsen and State Department legal adviser nominee Harold Koh—“by linking the votes to suppressing critical torture memos from the Bush era.”  The claim struck me as highly implausible, if not absurd, on its face—who really thinks that Senate Republicans now care about running interference for the Bush administration?—and designed by someone to stigmatize Republican opposition to Johnsen and Koh.  I’ve confirmed with a reliable Senate staffer that it’s bogus. 

As this Wall Street Journal article today reports, the real debate over releasing the memos is occurring within the Obama administration—between the CIA and the Justice Department.

Harold Koh’s Transnationalism—The Constitutional Game

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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)]

Another Feeble Defense of Koh

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In a blog post by law professor Julian Ku on Opinio Juris, GW law professor Edward Swaine tries to defend Harold Koh’s less-than-forthright testimony on CEDAW before the Senate Foreign Relations Committee, and he and I have a back-and-forth in the comments section.  Alas, Swaine’s defense rests entirely on his misunderstanding of the hearing process and on his misrepresentation of Koh’s oral testimony.  (Before having the benefit of my response to Swaine, Ku stated that Swaine “raises a really good point” and tentatively opined that “[a]s far as [he] can tell” Koh’s testimony raises “no real ethical issue.”)

In an earlier post on Opinio Juris, Ku credits my post on Koh’s CEDAW testimony for “land[ing] a sharp and potentially serious blow” to Koh.  Ku, I’ll note, refrains from embracing my characterization of Koh’s testimony, but he does say that “Koh was plainly in advocacy mode, not scholarship mode,” that (in wry understatement) the “testimony was not Koh’s best moment,” and that “Whelan deserves credit for raising questions about it.”  In the comments section to that post, I also respond to another effort to defend Koh.

Re: Credential Creep

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Here’s a follow-up to my post about Doug Kmiec’s extravagant misdescriptions of his credentials.  But first let me emphasize that this is not a parodyReally, it’s not.

A trustworthy reader informs me that a recent book of essays to which Kmiec made a contribution—Same-Sex Marriage and Religious Liberty:  Emerging Conflicts—includes this hilarious description of Kmiec (obviously provided by Kmiec himself) in the list of contributors:

Douglas W. Kmiec is Caruso Family Chair and Professor of Constitutional Law, Pepperdine University.  He served as head of the Office of Legal Counsel (U.S. Assistant Attorney General) for Presidents Ronald Reagan and George H.W. Bush, a position previously held by the late Chief Justice Rehnquist (for Nixon) and Justice Scalia (for Ford).  Professor Kmiec’s colleague and adjoining office mate during his service was yet another member of the Supreme Court, Samuel Alito. . . .

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

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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,” 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

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 (to come)

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

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

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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

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—Reinventing the Constitution (Part 1)

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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.

[Tenth 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]

More On the Iowa Travesty

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from the always-worth-reading Hadley Arkes, at The Catholic Thing.

Credential Creep

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In skimming Doug Kmiec’s Legal Times defense (registration required) of OLC nominee Dawn Johnsen, I was surprised to see this description in his byline:  “Douglas W. Kmiec served as head of and principal deputy in the Office of Legal Counsel from 1985 to 1989.” 

In fact, Kmiec headed OLC, first as acting AAG, then as the appointed AAG, for a total of about eight months—from (as best I can tell) roughly August 1988 to April 1989—at the end of the Reagan administration (after Chuck Cooper and most of his deputies had left the office) and the beginning of the Bush 41 administration (until President Bush was able to replace him). 

Kmiec never served as “principal deputy” in OLC.  The formal designation of “principal deputy” appears not even to have existed when Kmiec was at OLC, and folks who were in OLC at the time tell me that Kmiec was never regarded as the lead deputy.  (The only contenders for that role were Sam Alito, who left OLC in March 1987, and Mike Carvin, who left OLC in August 1988.) 

Kmiec’s website bio is even more extravagant, as it asserts that Kmiec was the AAG heading OLC from 1985 to 1989:  “Kmiec served Presidents Ronald Reagan and George Bush during 1985-89 as constitutional legal counsel (Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice).” 

Someone familiar with OLC at the time tells me that it’s unlikely that Kmiec ever met personally with Reagan to provide him legal advice (and that if any such meetings did occur, they would have been very few).  Given that Bush 41 promptly replaced Kmiec, the same surely holds for Bush.

Kmiec’s website bio’s description of his time as dean of Catholic University’s law school is also interesting: 

“[Kmiec] serv[ed] several years as dean and St. Thomas More Professor of Law at The Catholic University of America in Washington, D.C. … As dean at Catholic University, Professor Kmiec did what many said would be impossible; he greatly increased academic quality and student selectivity at the same time he deepened the school’s religious commitment. During his tenure, the law school moved into the upper tier of the U.S. News ranking from tier three.”

I am reliably informed that Kmiec served only two years as dean of Catholic University’s law school; that the law school moved modestly from just above the cusp of “tier 3” (rank 101 and higher) to the distant ranks of “tier 2” (which runs from to 51 to 100—Catholic University’s law school stands at #88 in the 2008 rankings), nowhere near what anyone would sensibly call the “upper tier”; and that his only “impossible” achievement was to unify a fractious faculty in its opposition to him.

Harold Koh’s Transnationalism—The Treaty Game

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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.

[Ninth 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.  With this post, I’ve completed the entries through heading 4.

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

6.  The role of the State Department legal adviser]

This Day in Liberal Judicial Activism—April 14

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1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit.  Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’”  But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.”  Cook nicely summarizes the broader problem with judicial activism:  “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”    

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

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[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 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.”

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. 

* [4/16 addendum:]  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.” 

Next:  Putting the CEDAW picture together.

(Eighth in a series.  Previous posts:  Overview of series, what “transnationalism” is, what customary international law is, the transnationalist game on customary international law, the scope of the treaty power, the domestic legal status of treaties, and CEDAW (Part 1).)

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

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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 without 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.”

In my next post, I’ll examine Harold Koh’s remarkable June 2002 testimony arguing that the Senate should consent to CEDAW without conditioning its consent on the various reservations, understandings, and declarations that past administrations, including the Clinton administration, had proposed—including, most importantly, the declaration that CEDAW would be non-self-executing (i.e., would not be binding as domestic law).

* 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.)

(Seventh in a series.  Previous posts:  Overview of series, what “transnationalism” is, what customary international law is, the transnationalist game on customary international law, the scope of the treaty power, and the domestic legal status of treaties.)

Mistaken Defense of Koh on CIL as Federal Common Law

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The fellow calling himself “publius” has a long post that takes issue with my post on Harold Koh and customary international law as federal common law.  Unfortunately, “publius” gets his two main points wrong (as well as lesser points that I will ignore).

First, “publius” posits a distinction between what he calls “Version #1” and “Version #2” of common law.  Version #1, he claims, is a “wholly independent binding law floating out in space” that “publius” thinks that legislatures couldn’t supersede.  Version #2 “recognizes the supremacy of positive law (e.g., statutes, regulations), but allows courts to serve as a [sic] ‘gap fillers’ where statutes are ambiguous.” 

This account is badly confused.  For starters, it has always been recognized that legislation can supersede common law.  More to the point of the debate over customary international law as federal common law, there is nothing about customary international law that limits it to gap-filling.  Further, under Koh’s view of customary international law as federal common law, customary international law would trump pre-existing provisions of state constitutions and statutes.  It would, as a logical matter, also trump prior-enacted federal statutes as well.  (Congress, but not the states, would then have the power to supplant the rules of customary international law.)

Second, “publius” asserts (underlining added, footnote call omitted): 

Moving on to the allocation of power point, remember that gaps have to be filled by someone.  For instance, let’s say that no law speaks to the issue of consular immunity. Someone has to decide whether these officials are immune (and under what circumstances) if there’s no clear answer anywhere else in the positive law.  Koh is saying that he wants federal law to govern this issue, and to be informed by international custom.  Bradley and Goldsmith, by contrast, want these issues decided by state common law.

No.  Koh wants federal judges to decide these issues.  Bradley and Goldsmith believe that “the federal political branches”—Congress and the president—alone have the authority to decide what rules of customary international law become federal law (and that “the appropriate state entity”—the state legislature or the state courts—can decide the effect of customary international law under state law).  In response to the bizarre title of Koh’s response to them—“Is International Law Really State Law?,” 111 Harv. L. Rev. 1824 (1998)—Bradley and Goldsmith explain on the first page of their reply what should be evident to anyone who read their article:  “we have not in fact argued that CIL is state law.”  (“Federal Courts and the Incorporation of International Law,” 111 Harv. L. Rev. 2260 (1998).)

I’m pleased to see that “publius” promises to “correct anything [he] get[s] wrong.”  But there’ll be nothing left of his post once he corrects his errors.

Re: Foreign Matter

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A follow-up to Matt’s post:  On The Corner, I present excerpts from, and link to, my NRO essay, “Alien Justice:  Ruth Bader Ginsburg vs. the Declaration of Independence,” from several years ago that exposes Justice Ginsburg’s badly confused views on the use of foreign and international legal materials.  And, yes, I also make a Koh connection.

This Day in Liberal Judicial Activism—April 13

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2001—Judge Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman.  The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.”  Barkett asserts that the district court injunction properly barred “public student prayer”.

I Have Seen the Future

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and it doesn’t workComing soon to a state near you.

Foreign Matter

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About Justice Ruth Bader Ginsburg’s obscurantist defense of the use of foreign law in American jurisprudence, I have nothing much to add to the comments of Mark Steyn and Jennifer Rubin but, “what they said.”

Taking Stock of the Takings Clause

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In his column today, George F. Will is exercised about a case he thinks the U.S. Supreme Court should hear on certiorari from the Illinois supreme court.  It concerns an act of the Illinois legislature mandating a transfer of 3% of the gross receipts from the wealthiest of the state’s riverboat casinos to the state’s five racetracks, in an effort to bolster Illinois’s flagging old horse racing industry with proceeds from its booming new casinos.

The state supreme court, in a unanimous ruling last June in Empress Casino v. Giannoulias, upheld the act against various challenges, including under the “takings” clause of both the state and federal constitutions.  Will thinks the U.S. Supreme Court should take the case, and hold the law is an unconstitutional taking, because it seizes money from A and gives it to B–”without even laundering the money through the state treasury,” he points out.  (The casinos make daily payments to a “Horse Racing Equity Trust Fund,” which disburses those daily contributions to the racetracks within 10 days.)  In high dudgeon, Will declares “the U.S. Supreme Court should take the Illinois case and reject the preposterous idea that money is not property within the scope of the takings clause.”

But there is a very good reason why “money is not property” where the takings clause is concerned.  The clause makes no sense otherwise.  The Illinois scheme is a form of taxation.  First, consider if the funds had been “laundered” through the treasury–i.e., collected like any other tax in payment to the state’s general funds, then paid out to the racetracks as a state subsidy via ordinary appropriations, exactly matching whatever amount was received from the casinos.  How would this be any less a transfer of A’s money to B?

Now, consider the takings clause: “nor shall private property be taken for public use, without just compensation.”  Adjudication under the clause poses three questions: Is a public act a taking of private property?  Is it for a public use?  And is the taking compensated?  The questions cannot be posed in isolation from one another.  If a taking has occurred, and is not for a public use, then a court may invalidate it.  But if a taking has occurred, and the property will be put to public use, then the taking must be justly compensated, with money from the treasury equaling the value of the thing taken.

Do you begin to see the problem?  A tax cannot be the subject of a takings suit, because if the answer to the “public use” question is that the taking was valid, then there still must be compensation–and that will mean that the tax money, to the last penny, must be returned.  This would mean that every valid tax would be cancelled out as a taking, and that is an intolerable absurdity.  So, if a tax meeting the public use requirement cannot be subjected to the strictures of the takings clause without an absurd result, then it follows that it is an error to pose the “public use” question about a tax in the first place.  Hence it is an error to bring any part of the takings clause to bear on a state’s use of its power to tax and to spend, and no tax, however blatant it is as a wealth transfer, can be subject to the clause at all.

There is another angle of attack on wealth transfers of this kind, resting on the due process clause, which was classically understood as forbidding the forced giving of A’s property to B as not law, but a decree that fails the test of a generally applicable law.  For a number of reasons, I don’t think that kind of challenge would work in this instance.  But it’s dead certain that the takings clause has no proper application to a case of this kind.

This Day in Liberal Judicial Activism—April 12

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1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest.  After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip.  Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross.  Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause.  Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.  

If You’re Pressed For Time

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and still haven’t read my article on Iowa’s same-sex marriage ruling at Public Discourse from earlier this week, a shorter adaptation of it appears at the Christian Science Monitor today.  That is, if you can squeeze it in between installments of Ed Whelan’s tour-de-force takedown of Harold Koh, “transnationalist”!

Calls for Real Debate on Harold Koh

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On Opinio Juris, international law professor Julian Ku, noting my series of posts on Harold Koh and the responses they’ve received from Koh’s defenders, says that it’s not “fair for Koh defenders to dismiss criticism of Koh’s substantive legal views” and poses ten excellent questions he’d like to see Koh answer.  Also on Opinio Juris, international law professor Kevin Jon Heller observes that I have “offered well-reasoned criticisms of Koh that deserve proper rebuttal.”  Might Koh’s defenders begin engaging my arguments?

Heller’s comment, I’ll highlight, comes as a postscript to his post faulting me, with good cause, for harsh rhetoric that I used against Koh’s defenders.  As I note in a comment on his blog, I agree with him that I resorted to intemperate rhetoric in a recent post, and I had already modified that post to moderate its tone.  I do think that the record will show that I was responding to baseless insults from Koh’s defenders—“absurd,” “pretty shameful attacks,” “nativist rants,” “full crazy,” “nativist paranoia,” “wild conspiracy theories,” “nonsensical,” and so on—unsupported, as Heller’s postscript would seem to acknowledge, by meaningful argument.  By contrast, the excessive rhetoric that I flung back was accompanied by explanations.  But while these facts may be mitigating, they don’t justify my rhetorical excesses, and I will strive to accord to Koh’s defenders a greater charity of spirit, whether or not they accord that to me.

Harold Koh’s Transnationalism—Domestic Legal Status of Treaties

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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.

(Sixth in a series.  Previous posts:  Overview of series, what “transnationalism” is, what customary international law is, the transnationalist game on customary international law, and the scope of the treaty power.  Next:  Interpreting and implementing treaties, with CEDAW as Exhibit A.)

Harold Koh’s Transnationalism—Scope of Treaties

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[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 dependence 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,” 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.

 

(Fifth in a series.  Previous posts:  Overview of series, what “transnationalism” is, what customary international law is, and the transnationalist game on customary international law.  Next:  The domestic legal status of treaties.)

More Risible Defenses of Koh

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[Update (4/10):  In my exasperation at the failure of Harold Koh’s defenders to engage my actual arguments even as they purport to do so, I initially wrote the post below in harsher rhetoric than is necessary.  I have now modified it.]

While I’m polishing up the next posts in my series on Harold Koh, I’ll take a brief break to respond to the criticisms of my posts by Koh’s defenders.  I haven’t seen anything yet that has merit.  In particular, no one has identified a single actual error in the several thousand words I’ve written so far.  Nor, incidentally, do those trying to dismiss me as unfair to Koh inform their readers that I was, so far as I can tell, the first conservative blogger to tell Koh’s other critics that they “should not base their case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts”—an argument I made, on both The Corner and Bench Memos, immediately upon learning that that charge was circulating in the blogosphere.

Now a quick survey of Koh’s defenders (beyond law professor Laura Dickinson, whom I’ve already addressed here and here):

Charlie Brown and St. John’s law professor Chris Borgen believe that “transnationalism” is an epithet that I’ve invented to stigmatize Koh.  But it’s Koh who has described his favorite Supreme Court justices as the “transnationalist faction” and as “transnationalists” (in his 2006 law review article “Why Transnational Law Matters”).  It’s Koh who (in his 2004 article “International Law As Part of Our Law”) praises a “more venerable strand of ‘transnationalist jurisprudence” and talks about a “transnationalist system,”  “transnationalist views,” and “transnationalists.” 

Brown responds to my criticism of Koh’s positions on customary international law, evidently without ever having read my two extensive posts on the topic.  (His post refers and links to only my introductory post and my “first one here” and thus indicates that he read only the first two posts of the series; my posts on customary international law were the third and fourth.) 

Some fellow who calls himself Publius claims that I’m attributing to Koh normative arguments when he is only making descriptive observations.  But Koh is an ardent advocate of promoting transnationalism through what he calls “transnational legal process.”  Consider, for example, his Stanford Law Review article “On American Exceptionalism” in which Koh says that his “preferred solution” to “American exceptionalism”—on First Amendment speech rights (see here and here) and much else—is “triggering transnational legal process.”  Publius-Poseur also sets up straw men of his own imagining:  “Koh’s point isn’t that we should ignore domestic law – or treat it as non-existent,” he says, in supposed response to an argument I’ve never made.  Ditto for:  “to Whelan, all of Koh’s descriptions (along with Koh’s more limited normative suggestions) mutate into calls to wholly ignore domestic law” (emphasis in original). Publius-Poseur contends that Koh is “simply saying that American courts have – from the founding – historically looked abroad to inform their judgments, and that they should continue doing so today.”  That hardly captures the breadth of Koh’s arguments, as Koh’s own words in my posts should make clear.  And P-P invents and attributes to me an argument about construing the Due Process Clause that I haven’t made and don’t believe.

Washington & Lee law professor Hari Osofsky purports to respond to my criticisms of Koh, but gives zero evidence that she’s actually read them.

I did like the candor of this commenter on Publius-Poseur’s blog, who says:  “I don’t agree with Whelan — mostly because I largely approve of the values of our new transnationalist overlords.” 

This Day in Liberal Judicial Activism—April 9

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2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments.  The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public.  The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent).  The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive.  In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.  

Re: Incoherent Academics for Koh

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Koh defender Laura Dickinson thinks that my exposition of her illogic amounts to an “ad hominem attack.”  (Maybe it shouldn’t be surprising that someone who practices non sequiturs doesn’t know what ad hominem means.)  Meanwhile, she mischaracterizes my arguments.  For example, she ignores my simple explanation of “the overall transnationalist game on customary international law” (including the lawmaking role of academics and NGOs) and baselessly suggests that I may be “opposed to judicial review.”  And she doesn’t have the decency even to link to my posts (perhaps out of fear that her readers will discover how empty her responses are).

Dickinson complains that I ignore the “core point” of her post, “which is simply that Harold Hongju Koh is a mainstream scholar and lawyer who has won praise from Democrats and Republicans alike and who has even-handedly served in Democratic and Republican administrations.”  It shouldn’t be surprising that I responded to her attacks on me rather than bothering with her trivial “core point.”  I’ve previously addressed (at the end of this post) the relevance of Koh’s service as a junior career lawyer in the Reagan Administration.  As for his being a “mainstream scholar”:  I’ll readily acknowledge that in the zoo of modern legal academia, Harold Koh isn’t an especially exotic creature (especially to other animals in the zoo).  But that says much more about the state of legal academia than anything else.

This Day in Liberal Judicial Activism—April 8

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2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph.  In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) unanimously reverses the Ninth Circuit.   

Tushnet’s “Nothing” Analysis of AG Holder’s Political Override of OLC

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When I ran across Harvard law professor Mark Tushnet’s blog post complaining about people who “have been writing op eds [sic] and blogging about [Attorney General Holder’s] politicization of the Department of Justice” on the D.C. voting rights bill, I was expecting that Tushnet might express some meaningful disagreement with my blog posts (here and here) or my Washington Post op-ed.  Instead, the only one of his scattershot points that might be read to take issue with me is his objection to the assertion that the AG took an action “overruling” the OLC advice.  I used the term “overrule” or “overruled” twice in my op-ed, and I used the equivalent term “override” several times in my blog posts and op-ed. 

Objecting to the term “overruling,” Tushnet asserts in screaming boldface and all caps that “nothing has happened”—by which he seems to mean that the AG hasn’t done anything with respect to OLC’s opinion.  Well, that’s not how the Washington Post (on which I expressly relied) reported Holder’s own account of his action:

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

Tushnet seems, nonetheless, to think that there’s no action that the AG could possibly have taken yet.  The facts, admittedly, are unclear, which makes it rather odd that Tushnet maintains that he knows that “nothing has happened.”  One obvious possibility is that OLC prepared a bill comment for transmission to the Office of Legislative Affairs and that the AG ordered OLC not to send the bill comment to OLA or ordered OLA not to abide by the advice. 

Incoherent Academics for Koh

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It’s long been my experience that many liberal legal academics are surprisingly unable to engage in reasoned legal argument.  The latest example that’s come to my attention is Arizona State law professor Laura Dickinson’s response to my remarks about Harold Koh.  Contending that criticisms of Koh “have gone from silly to absurd,” Dickinson takes issue with (in fact, labels “absurd”) the opening sentence of the introductory post in my series on Koh, where I stated:

In a series of posts, 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.   

But despite the fact that her response comes after I have published three additional detailed posts about Koh, she doesn’t respond to any of the supporting arguments that I have already provided.  (And I’ll have much more to come.)

Dickinson also contends:

Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.

Set aside that, after several Google searches, I’m not quite sure where the quote that Dickinson attributes to me comes from.  I don’t dispute that the quote, even if Dickinson’s own invention, is a fair paraphrase of my position.  [A later thought:  Perhaps Dickinson is quoting from a transcript of a brief television or radio appearance of mine.  If so, it’s all the more amusing that she would bother to consult such a transcript but not trouble herself to address the detailed arguments in my posts.]

But Dickinson’s supposed rebuttal is an obvious non sequitur.  I’ll readily assume that her account of Koh’s book is accurate.  So what?  The fact that Koh believes that “Congress and the executive branch both have an important role to play in pursuing national security issues” does not remotely disprove the proposition that transnationalism would enable “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.”  Might someone respond to my actual supporting arguments?