If Obama’s guy gets his way. U.S. Courts Should ‘Download’ International Law into Domestic Law, Obama Nominee Says
Harold Koh, nominated by President Barack Obama to be the State Department’s top legal adviser, once argued that U.S. federal court judges – including the Supreme Court – are the “critical link” between international and domestic law and play a critical role in bringing international norms into force as domestic law.
Koh, currently dean of the Yale Law School, explained that his concept of “transnationalism” was the “downloading” of international laws and customs into domestic law, whether through the legislative process or through federal courts’ use of international law in interpreting the Constitution of the United States.
How does international law become part of America’s?
“Over the decades, American judges have helped internalize international legal norms into U.S. domestic law through a range of interpretive techniques.”
Among these techniques are “(1) constitutional interpretation, (2) treaty interpretation, (3) incorporation of customary international law into domestic law [and] (4) direct statutory interpretation of statutes [laws] that expressly incorporate international law.”
Amnesty International should help determine what laws govern us, according to him:
“[K]ey agents in promoting this process of internalization include transnational norm entrepreneurs (NGOs), governmental norm sponsors (government agencies), transnational issue networks, and interpretive communities (courts).”
Transnational networks, according to Koh, are created when governments and NGOs – groups such as Amnesty International and Human Rights Watch – work together to create international norms. Courts – Koh’s “interpretive communities” – then incorporate these norms into domestic law.
The Supreme Court is divided between the transnationalists and the unenlightened cave-dwellers:
He even divided the U.S. Supreme Court into “transnationalist” and “nationalist” camps, saying that unlike the transnationalists, the court’s nationalist justices favored “yesterday’s issues” such as federalism, abortion, and religion.
“The transnationalist faction – which includes Justices Breyer, Souter Stevens, Ginsburg, and at times, Justice Kennedy – tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest” and instead “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.”
And here I thought the Supreme Court was supposed to decide on the constitutionality of laws, as in American Constitution. Live and learn.
“The transnationalists believe in and promote the blending of international and domestic law, while nationalists continue to maintain a rigid separation of domestic law from foreign law,” he wrote. “The transnationalists view domestic courts as having a critical role to play in domesticating international law, while nationalists argue instead that only the political branches can internalize international law.”
So, what do we need Congress for, then?
“He espouses a fairly radical theory that the U.S. Constitution, and the laws that flow from it, must only be one source of jurisprudence for American courts as they seek to decide cases,” said Gaffney.
“This is a staggering departure from the view that we have a system of laws and they’re made by people who are elected by the people of this country to represent them, and that they are signed into law by a president of the United S[t]ates who is elected,” said Gaffney. “This is a radical idea, a radical agenda.”
Want to observe the results of this sort of system? Look at Great Britain. The European Union makes at least 80% of the laws governing the English people, which has made their Parliament meaningless. It’s true that they can vote for their few Members of European Parliament, but they have essentially zero influence on the body and the legislation it spews out. There’s no chance of any kind of Tea Party movement succeeding there, because there is no political accountability. Their political blogosphere sucks, too.
Europe can keep it’s system, and the President can keep his nominee.