The Corner

Transnational Progressive Nominated as Legal Advisor for State

The Transnational Progressive assault on the sovereignty of the American liberal democratic nation-state has just kicked into high gear with the nomination by the Obama administration of Yale Law School Dean Harold Koh to be the Legal Advisor to the U.S. State Department. Dean Koh wants to “trigger a transnational legal process” that will “generate legal interpretations that in turn can be internalized into domestic law.” Put simply, he favors opening a transnational legal space beyond the Constitution and the democratic decision-making process of our liberal democracy. My comments on Koh’s theories below are excerpted from my Bradley Symposium essay of June 2008, “Global Governance vs. the Liberal Democratic Nation State: What is the Best Regime?

Harold Koh, the dean of Yale University Law School, served as assistant secretary of state for democracy, human rights, and labor during the Clinton Administration. In a detailed article in the Stanford Law Review responding to the Bush foreign policy, Koh articulates the central viewpoint of the American governing left.

Koh chastises the US for failing to “obey global norms.”America, Koh tells us, “promotes double standards” by refusing to ratify the International Criminal Court treaty; “claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons”; and “declining to implement the orders of the International Court of Justice with regard to the death penalty.”Indeed, Koh complains: “The World Court finally found that the United States had violated the Vienna Convention” (on the death penalty), but “American courts have essentially ignored” the ruling of the ICJ.

Koh’s proposed remedy to American exceptionalism is for “American lawyers, scholars and activists” to “trigger a transnational legal process,” of “transnational interactions” that will “generate legal interpretations that can in turn be internalized into the domestic law of even resistant nation-states.”For example, Koh suggests that, “human rights advocates” should litigate “not just in domestic courts, but simultaneously before foreign and international arenas.”Moreover, they should encourage foreign governments (such as Mexico) and transnational NGOs to challenge the US on the death penalty and other human rights issues.

Supporters of the International Criminal Court should, Koh recommends, “provoke interactions between the United States government and the ICC” that might lead to the US becoming enmeshed in the ICC process (by, for example, having the US provide evidence in ICC trials). These interactions with the ICC would show cooperation with the tribunal and therefore “could be used to undermine” the official US “unsigning” of the treaty because it might “constitute a de-facto repudiation” of the “act of unsignature.”

Of course, the “transnational legal process,” advocated by Koh (and others in the governing center-left) is a process outside of American constitutional democracy. The American people have a Constitution, judicial institutions, and a democratic political system. Transnational “interactions” (such as appealing to foreign courts) are not part of the institutional authority and accountability inherent in the meaning of the phrase: “We the People of the United States.” Koh’s “interactions” are something “outside” of the “People of the United States” and “beyond” the Constitution and our democratic process. Therefore, they could be characterized as extra-constitutional, post-constitutional, or post-democratic. In effect, they seek to achieve results that could not necessarily be achieved through the regular process of American democracy. This clearly raises the core “regime” questions of what constitutes legitimate political authority and who is responsible to whom in a democratic state.

— John Fonte is a senior fellow at the Hudson Institute.


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