Once we sign our rights over to international law, the Constitution is officially dead.
– Glenn Beck
I am rare among law academics in that I consider international law to be essentially a legal fiction. For the sake of argument assume that my thesis is correct. This enigma then begs the question: How can international law, which by definition is made up of the laws of many sovereign nations, be applicable to all nations on an equal basis? Answer: It can’t.
Harold Hongju Koh
Modern international law had its origins concurrent with the inauguration of the United Nations at the San Francisco Conference (April, 1945) and its first international trial, the Nuremberg Trials (1945-48). Since the end of World War II international law has evolved to create and integrate other aspects of law, namely transnational law which in essence is a form of supranational law, which contends that laws of nation states are held inapplicable when conflicting with a supranational legal system.
On March 29th, the Obama Administration nominated Harold Koh (on leave as the Dean of Yale Law School), as the senior legal adviser to Secretary of State Hillary Clinton. On June 25, 2009, Koh was confirmed by the Senate in a 62-35 vote. Koh is one of the foremost experts in the field of transnational law and has written extensively on this subject both in books and in law journals. While his nomination has been generally supported in the Senate and by most law academics, Koh’s nomination did have some criticism from some conservative commentators for his views on international law and its use in American legal analysis and jurisprudence.
Surprisingly, other conservatives such as former Bush 41 Solicitor General, Ted Olsen, former Whitewater Special Counsel, Kenneth Starr and even generally conservative publications such as Forbes Magazine, have all supported Koh’s nomination.
In a recent article, a student-editor at Pepperdine said of Obama’s nominee: “Koh has defined his academic career by arguing for the mandatory authority of international law in domestic realm of American jurisprudence.”
Koh’s arguments for “transnational jurisprudence” as being essential to maintaining a well ordered international legal system is compelling. Koh’s contention that “concepts like liberty, equality and privacy are not exclusively American constitutional ideas but, rather, part and parcel of the global human rights movement,” is in line with the conventional thinking of the legal community.
Unfortunately, Koh’s legal theories are from a decidedly secular humanist and positive law worldview which glorifies the power of the State, versus a natural law worldview that integrates law and morality by placing moral law above the State not below it.
Conservatives on the Supreme Court, particularly Thomas and Scalia, have criticized transnational jurisprudence as not being amenable with legitimate judicial precedent as Koh maintains, but argue that citing foreign decisions as legal precedents threatens American sovereignty. Other commentators like Forbes and the American Enterprise Institute, a conservative think tank, have contended that the “use of such nonbinding sources to bolster legal arguments is a central and uncontroversial tenet of the American judicial process.”
While Koh’s transnational jurisprudence is interesting, what does American constitutional history have to say about it? According to an exhaustive study by Lutz and Hyneman that took them over 10 years to bring together, they amassed over 15,000 items, including 2,200 books, newspaper articles, pamphlets and monographs of political materials written between 1760-1805. The three most quoted legal philosophers by the Constitution’s framers were:
- Baron Charles Montesquieu, “The Spirit of the Laws” (1748);
- Sir William Blackstone, “Commentaries on the Laws of England” (1765-69);
- John Locke, “Two Treatises of Government” (1689)
All three men were Natural Law philosophers to the core and their ideas thoroughly influenced America’s Founding Fathers. The only other source quoted more than these three political philosophers was the Bible which, according to the Lutz/Hyneman study, accounted for 96 percent of the ideas that formed America’s republic.
Here is where I strongly disagree with Forbes Magazine and AEI. Yes, America’s constitutional framers and the Supreme Court advocated reliance on extra-constitutional sources including continental and common law traditions, but it was always done under a paradigm that integrated law and morality, not a segregation of legality and morality as Koh, most contemporary law academics and even some conservatives believe.
Koh, like most liberal law academics and socialists are proponents of international law, transnational law and supranational law being equal to or superior to America’s Constitution. They achieve this interpretation through a revisionist reading of constitutional law. Kelsey Stapler writes that Koh and others “draws from a few phrases of the American Constitution to support this claim: the Supremacy Clause (Article 6, section 2), defining treaties as the “supreme law of the land,” and Article I, section 8, clause 10, giving the Congress the power to define and punish “offenses against law of nations.”
Koh is sophistic here because the framers mandated that the Constitution be interpreted under a natural law paradigm (“the law of Nature and of Nature’s God”). Once you remove moral constraints from law, the law becomes open to humanist, egalitarian and even nihilist considerations like positivism, naturalism, international law and transnational law. In my opinion, Koh’s supremacy view of international law contradicts natural law, the sovereignty of nation states and the primacy of the Constitution as the “supreme law of the land.”
When Fox News TV host Glenn Beck said: Once we sign our rights over to international law, the Constitution is officially dead,” he is following a strong natural law tradition of the Constitution’s Framers. On the other hand, Koh’s international and transnational conception of law argues “that American values are no longer the sole measure of our rights” and places judicial bodies such as the International Criminal Court or the European Court of Human Rights above the black letter text of the U.S. Constitution. America, this is a philosophy of treason!
In the end, transnationalism in essence makes bureaucrats like Koh, Hillary, Obama and liberal activist judges like Justices’ Stevens, Ginsburg, Breyer, Souter, Kennedy and Sotomayor a tyrannical oligarchy and “We the People” their despised serfs.