EDITORIAL: No on Koh

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The Senate has a chance this week to kill the most offensive nomination of an executive-branch official since President Clinton’s ill-fated selection of radical black racialist Lani Guinier for assistant attorney general in 1993. Yale Law School Dean Harold Koh is unfit to be chief legal counsel at the State Department. Senators should vote him down.

Mr. Koh’s repeatedly stated agenda is contrary to the American tradition of law originating in the “consent of the governed.” In its place, Mr. Koh would apply what he calls a “transnationalist” approach whereby domestic laws and even the Constitution could be brushed aside in favor of international authorities.

From various writings by Mr. Koh, we learn that American courts should “moderate” certain of our rights that create “conflicts,” such as “our exceptional free-speech tradition.” He also has encouraged outside criticism of Americans’ “embrace of the First Amendment.”

The Second Amendment fares no better. In an essay called “A World Drowning in Guns,” Mr. Koh endorsed a “global regulatory” regime to outlaw firearms though “rules negotiated among governments at a horizontal, intergovernmental level and interpreted through the interaction of transnational actors.” Those laws, he wrote, could then be “internalized into the domestic statutes, executive practice and judicial systems of those participating nations.”

What he means is that international gun bans could be imposed on American citizens without a vote of the American people. Likewise, the Eighth Amendment could be newly read to bar the death penalty despite the Constitution’s explicit acceptance of it elsewhere in the document, merely because American judges suddenly decide to “pay decent respect to the opinions of mankind.”

Lest anybody think we misread Mr. Koh’s intentions, here is his own explanation from a 2006 essay on so-called transnationalism: “The transnationalists 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.”

By superseding the lawmaking role of the “political branches,” Mr. Koh would give unelected judges the right to create laws based on the views of Danes, Brazilians and Zimbabweans without regard to the votes of the American people. The Senate, which rightly sees itself as the duly elected voice of the people of each individual state, would thus see its own power - and that of the citizens it represents - eroded and undermined by an astonishing degree.

No matter how you spin it, transnationalism is an assault on the underpinnings of the U.S. Constitution, which by terms ratified by this nation’s people is the “supreme Law of the Land.” To take office, Mr. Koh would be asked to take an oath to “support and defend the Constitution of the United States … [and to] bear true faith and allegiance to the same.” No man who advocates transationalism can take that oath in good conscience.

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