President Barack Obama’s upcoming Supreme Court nomination is likely to be his most important pick so far. But that doesn’t mean he hasn’t made some dubious choices–even among Democrats who had paid their taxes–along the way.
One is Harold Koh, the Yale Law School dean tapped to be the State Department’s top lawyer. Koh is a talented lawyer and perfectly reasonable, if liberal fellow. But he seems far too willing to let international law subsume American law.
Harold Koh, nominated by President Barack Obama to be the State Department’s top legal adviser, once argued that U.S. federal court judges – including the Supreme Court – are the “critical link” between international and domestic law and play a critical role in bringing international norms into force as domestic law.
Koh, currently dean of the Yale Law School, explained that his concept of “transnationalism” was the “downloading” of international laws and customs into domestic law, whether through the legislative process or through federal courts’ use of international law in interpreting the Constitution of the United States.
Transnational law, according to Koh is “(1) law that is ‘downloaded’ from international law: for example, a law that is domesticated or internalized into municipal law … 2) law that is ‘uploaded then downloaded’: for example, a rule that originates in a domestic legal system … which then becomes part of international law … and from there becomes internalized into nearly every legal system in the world; and 3) law that is borrowed or ‘horizontally transplanted’ from one national system to another.”
Writing in the Penn State International Law Review (Vol. 24, No. 4, 2006), Koh argued that federal judges were the linchpin in transnational law due to their ability to unilaterally read international or foreign legal standards into their interpretations of the U.S. Constitution.
“[F]ederal judges have become an increasingly critical link between the international and the domestic legal spheres,” Koh wrote. “Over the decades, American judges have helped internalize international legal norms into U.S. domestic law through a range of interpretive techniques.”
Being aware of how other nations order themselves is one thing. Substituting foreign standards for American jurisprudence is quite another.
Well, at least he isn’t likely to sit on the Supreme Court, where he could turn his whims into law.
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