The man Barack Obama nominated to be the top lawyer at the U.S. Department of State believes that elected U.S. officials should have less to do with determining U.S. social policies and that foreign bodies — including largely unknown UN committees — should have more control.
Koh, lately dean of the Yale Law School and former official in the Clinton State department, wrote in a 2003 Stanford Law Review article that national sovereignty does not exist as most people understand it — that is, governments being able to act in their own self-interest largely free from outside interference. According to Koh, it now means “ a nation’s capacity to participate in international affairs.” He believes “the only way most states can realize and express their sovereignty is through participation in the various regimes that regulate and order the international system.” What he is talking about here is following the European Union along with the U.N. and its various committees to accept their laws, rules and rulings of their courts, despite the fact that neither are they subordinated to the U.S. Constitution nor are the people who write them to American voters.
Koh sides with those Justices on the Supreme Court that he calls Transnationalists. According to Koh, they believe “U.S. courts must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime.” Writing in the 2006 issue of the Penn State International Law Review, Koh goes on to say, “The Transnationalists believe that U.S. courts can and should use their interpretive power to promote the development of a global legal system.”
What this means practically is that policy makers and especially the Federal Courts should look beyond our shores to interpret the U.S. Constitution. This has happened in recent years. When the Supreme Court protected homosexual acts as a constitutional right in the Lawrence v. Texas decision, the Court cited decisions of the European Court of Human Rights. And in that case, Koh filed an amicus brief in which he cited a total of twenty-four foreign court decisions, nine international treaties, and five foreign constitutions which he believed the U.S. Supreme Court should defer to in the Lawrence case.
Koh argued, “This court has traditionally used international and foreign law rulings to aid its constitutional interpretations.” Which, of course, is false. The Supreme Court interprets domestic law only under the U.S. Constitution. The only times it refers to international law is in interpreting international law — and even then, ONLY when international law doesn’t contradict the Constitution AND where U.S. law is not clear.
Additionally, Koh wrote, “This Court should not decide in a vacuum whether criminalization of same-sex sodomy between consenting adults violates constitutional guarantees of privacy and equal protection. Other nations with similar histories, legal systems, and political cultures have already answered these questions in the affirmative. Applying the same or similar constitutional terms to nearly identical fact patterns, foreign and international courts have barred the criminalization of sodomy between consenting adults. This Court should pay decent respect to these opinions of humankind.”
Pro-life and pro-family activists know the system Koh promotes very well. Social conservatives, almost alone on the center right of American politics, have spent years at the United Nations fighting back against the encroachment of international bureaucrats upon the decisions properly left to the democratic process.
Starting with the International Conference on Population and Development (Cairo, 1994) and running through every major U.N. social policy negotiation to today, pro-life and pro-family advocates have directly lobbied U.N. delegates to block radical social ideas from becoming universal human rights.
In the Stanford Law Review, Koh argued that obeying such emerging new norms "builds U.S. ‘soft power,’ enhances its moral authority, and strengthens U.S. capacity for global leadership." But who decides what becomes an "international norm"?
Social conservatives have paid particular attention in recent years to the work of faceless U.N. committees that monitor compliance with U.N. treaties. A part of the U.N. treaty process is the creation of committees before which governments appear periodically to report on implementation of treaties they have ratified. Koh sees these committees as integral to the creation of new international norms that should be imposed on sovereign states.
The problem with these committees is they are undemocratic and unaccountable. They routinely take it upon themselves to reinterpret hard-law treaties painstakingly negotiated by sovereign states. Radical lawyers and judges around the world accept these personal views as “decisions” like legal writ and seek to impose them on democratic states. The Committee on the Elimination of All Forms of Discrimination Against Women had directed more than 90 countries to change their laws on abortion even though the treaty is silent on abortion. The Committee on Human Rights now interprets the “right to life” as a right to abortion. Koh approves.
These committees before which Koh wants the U.S. to appear and that he wants to develop new international norms are almost completely unknown. A large percentage of regular folks cannot name their own Congressman let alone a pack of nearly anonymous academics and ideologues that sit on these committees. Yet Koh not only wants the U.S. to dance before these committees, he wants these committees to set U.S. social policy.
Koh even finds intolerable the American tradition of prudent compliance without ratification. He argued in 2003 that this leads to "a false sense of freedom," and "the illusion of unfettered sovereignty." If only America would ratify every international treaty, his logic goes, other countries would like us more and do what we want. Such liberal naïveté willfully ignores the fact that the nations of the world respect U.S. power and moral leadership when it complies with genuine international law.
Koh would have the US follow smaller states that ratify treaties to gain legitimacy, or, worse, tyrannical regimes that ratify treaties only to toss them aside while they cruelly abuse their people. Koh’s choice would surely forfeit American leadership abroad and liberty at home.
Someone who believes all this is a danger to the democratic process and to the republic. Congress must reject Koh as top legal advisor to the U.S. State Department.