Tearing up the Constitution 0

 Republican Senator Rick Santorum writes in the Philadelphia Inquirer:

Watching President Obama apologize last week for America’s arrogance – before a French audience that owes its freedom to the sacrifices of Americans – helped convince me that he has a deep-seated antipathy toward American values and traditions. His nomination of former Yale Law School Dean Harold Koh to be the State Department’s top lawyer constitutes further evidence of his disdain for American values.

This seemingly obscure position in Foggy Bottom’s bureaucratic maze is one of the most important in any administration, shaping foreign policy in the courts and playing a critical role in international negotiations and treaties.

Let’s set aside Koh’s disputed comments about the possible application of Sharia law in American jurisprudence. The pick is alarming for more fundamental reasons having to do with national sovereignty and constitutional self-governance.

What is indisputable is that Koh calls himself a "transnationalist." He believes U.S. courts "must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime. …" He thinks the courts have "a central role to play in domesticating international law into U.S. law" and should "use their interpretive powers to promote the development of a global legal system."

Koh’s "transnationalism" stands in contrast to good, old-fashioned notions of national sovereignty, in which our Constitution is the highest law of the land. In the traditional view, controversial matters, whatever they may be, are subject to democratic debate here. They should be resolved by the American people and their representatives, not "internationalized." What Holland or Belgium or Kenya or any other nation or coalition of nations thinks has no bearing on our exercise of executive, legislative, or judicial power.

Koh disagrees. He would decide such matters based on the views of other countries or transnational organizations – or, rather, those entities’ elites.

Unsurprisingly, Koh is a strong supporter of the International Criminal Court, which could subject U.S. soldiers and officials to foreign criminal trials for their actions while fighting for our security. He has recommended that American lawyers work to "undermine" official American opposition to the court.

If only Koh’s transnationalism ended there. Our Eighth Amendment’s prohibition on cruel and unusual punishment? Koh believes it should be reinterpreted in light of foreign and international law to pay "decent respect to the opinions of humankind."

Old fogies like me believe we ought to pay more attention to the opinions of the Founders who wrote the Constitution and the people who have lived under it. If Americans want to end the death penalty, they can do so through their elected state representatives.

If foreign opinions trump those of Pennsylvanians on capital punishment, why not on other issues?… 

How would it work? Each judge could pick and choose which law of which country he would apply in any particular instance? Or would it be a matter of majorities: eg most other countries (all Arab countries, almost all African countries just to start with) use torture, make arbitrary arrests, imprison without trial, so the US should do it too? And Sharia punishments of limb-lopping, public floggings, hurling from heights, beheading, stoning – they should be applied in the US?

If this is Koh’s legal-political philosophy, and if he is to have his way, there is no point in national sovereignty; no point in Americans making their own laws, and they may as well tear up the Constitution.

Posted under Commentary by Jillian Becker on Thursday, April 9, 2009

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