Could international laws override American laws even if the United States has refused to ratify a treaty accepting a foreign authority? Harold Koh, President Obama’s nominee to be the chief legal counsel at the State Department, thinks so. That’s reason enough for the Senate to reject this Yale Law School dean. Koh is a prominent advocate of the “trans-nationalism” approach to global jurisprudence. To quote his own words from a 2006 essay, “The trans-nationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue that only the political branches can internalize international law.”
Think about that for a minute. To translate, what Koh is saying is that he and others who espouse his view reject the idea that Americans should only be governed by laws made by their elected representatives. The Founders put it more simply – “No taxation without representation.” Indeed, this nation is founded on the fundamental principle that Americans are governed only by their own consent, as expressed through our elected representatives – in other words, through “the political branches.” And “we, the people” ratified a Constitution saying that the “supreme law of the land” resides in the Constitution and the laws “made in pursuance thereof” – and that American judges “are bound thereby.” In short, Americans are governed by American law first, last, and always. To the extent that any foreign law applies to Americans, it must do so with our prior consent expressed through duly approved treaties with other nations.
There are other good reasons to keep American law superior to foreign law in the U.S. Foreign statutes are issued by all sorts of tribunals to which no American has or even can give consent. For many such tribunals, their own subject populations similarly have not consented. Such foreign authorities are no more legitimate sources of law for the people of, say, Texas, than Star Trek’s fictional Klingon empire can be for the planet Earth.
Koh thinks American courts should “moderate” certain of our rights that create “conflicts,” such as “our exceptional free speech tradition.” He has also explicitly endorsed criticism of Americans’ “embrace of the First Amendment.” This is no mere theoretical dispute. In Koh’s preferred world, a federal judge could impose on Americans terms of the international Convention on the Elimination of All Forms of Discrimination Against Women, which has been ratified by 185 countries. We would then likely be ordered to to legalize prostitution, eliminate official observances of Mother’s Day, adopt school curricula free of gender “stereotypes,” and even promote “redistribution of wealth.” This is the kind of thing the State Department’s lawyer should be fighting, not endorsing it.
