LIMBAUGH: Whose writ runs here?

COMMENTARY:

As usual, President Obama is multitasking the dismantling of the American system on so many fronts that not all of the outrages can be properly monitored. So, while you should be mortified by his dictatorial power grab with General Motors Corp., please don’t miss his recent nomination of former Yale Law School Dean Harold Koh as legal adviser for the State Department.

:In his new position, Mr. Koh would represent the United States before international bodies, such as the United Nations and the International Court of Justice, and would influence the degree to which other countries’ laws should influence U.S. jurisprudence.

After reading an alarming piece by Meghan Clyne in the New York Post concerning the Koh nomination and the degree to which Mr. Koh believes it is appropriate for U.S. courts to consider other nations’ laws in interpreting our Constitution, I read a number of his legal writings and speeches.

Ms. Clyne reported that New York lawyer Steven Stein said Mr. Koh, addressing the Yale Club of Greenwich in 2007, said “in an appropriate case, he didn’t see any reason why [Islamic religious] Shariah law would not be applied to govern a case in the United States.”

It turns out that on March 21, 2007, Carol Iannone, on Phi Beta Cons blog, published a letter from Mr. Stein to Mr. Koh about his Yale Club remarks. Mr. Stein wrote, in part, “In your discussion of ‘global law’ I recall at least one favorable reference to ‘Shariah,’ among other foreign laws that could, in an appropriate instance [according to you] govern a controversy in a federal or state court in the U.S.”

Whether or not Mr. Koh ever responded to Mr. Stein’s letter, Mr. Stein’s representations of Mr. Koh’s remarks are certainly consistent with Mr. Koh’s writings that I reviewed.

In Fordham Law Review, Mr. Koh asserted that the U.S. “Supreme Court is divided between two judicial camps: the transnationalists and the nationalists.” Mr. Koh considers himself a transnationalist and Justices John G. Roberts Jr., Antonin Scalia and Samuel A. Alito Jr. nationalists.

Mr. Koh explained the differences between these two judicial philosophies. According to Mr. Koh, transnationalist judges look to U.S. interdependence, whereas nationalists tend to look to U.S. autonomy. Transnationalists think about how U.S. law fits into a framework of transnational law, while nationalists see a rigid foreign and domestic divide. Transnationalists think that courts can “domesticate” international law (make it part of our law), whereas nationalists think that only the political branches can. Transnationalists favor development of a global legal system, while nationalists prefer a national legal system.

In other words, nationalists don’t believe it’s appropriate to look to foreign law in interpreting our Constitution. They believe only the political branches, not the courts, can adopt provisions of international law, and they don’t believe in slavish deference to global legal authorities, such as the International Criminal Court.

Transnationalists clearly believe in an ever-changing, living Constitution and reject originalism (interpreting the Constitution according to its original understanding). They are obviously globalists, not overly concerned with America’s national sovereignty. They see the international community, in the words of Mr. Koh, as a “community of reason” and believe that American judges, in interpreting our Constitution, can resort to this “community of reason” (foreign laws) to choose between two “plausible” legal positions.

Indeed, Mr. Koh wrote approvingly of United States Supreme Court decisions acknowledging “evolving standards of decency” and that we may look to this global community of reason to determine what those standards are.

If any of this is too legalistic, let me quote from Mr. Koh’s “Jefferson Memorial Lecture on Transnational Legal Process After September 11,” published in the Berkeley Journal of International Law.

In his introductory remarks, Mr. Koh said the United States, along with North Korea and Iran, form “the axis of disobedience,” that is, those nations “whose disobedience with international law has attracted global attention after Sept. 11.” Are you beginning to see the picture here?

If not, try his testimony before the Senate Judiciary Committee on Sept. 16, in which he lamented that the Bush administration forfeited the “universal sympathy” America enjoyed as a victim of the Sept. 11 attacks with a “series of unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law,” including Abu Ghraib, Guantanamo, torture, indefinite detention of enemy combatants, military commissions, warrantless wiretaps, evasion of the Geneva Conventions and international human rights treaties, excessive government secrecy, attacks on the United Nations, and others.

Story Continues →