» Politics, Academia, Law…Harold Koh in State Department?

Politics, Academia, Law…Harold Koh in State Department?

I didn’t even know how to title this post. A recent Newsweek article has made me very concerned: http://www.newsweek.com/id/194651.

Harold Koh is a brilliant legal academic, who is slated to become the legal advisor to the State Department. I’ll only quote a bit of the article here:

Koh argues that American law should reflect “transnational” legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment’s guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes “cruel and unusual punishment” under the Eighth Amendment. Koh’s views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues. Indeed, the justices cited foreign and international laws as support for their 2003 decision in Lawrence v. Texas striking down a Texas law against gay sex, and their 2005 decision, Roper v. Simmons, overturning the death penalty for juveniles in murder cases. Justice Ruth Bader Ginsburg recently defended the practice of citing international and foreign judicial precedents in Supreme Court decisions, implying that they never make a difference in the outcome. “Why shouldn’t we look at the wisdom of a judge from abroad with at least as much ease as we would read a law-review article written by a professor?” she asked.

But Koh would go much further. To show regard for “the opinions of mankind,” he asserted in a 2002 law review article, the death penalty “should, in time, be declared unconstitutional.” Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and “customary international law” to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations “Convention on the Elimination of All Forms of Discrimination Against Women,” signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty’s implementation has called for the “decriminalizing of prostitution” in China, the legalization of abortion in Colombia, and the abolition of Mother’s Day in Belarus (for “encouraging woman’s traditional roles”). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as “preposterous” the notion that the treaty would “somehow require the United States to abolish Mother’s Day.” Still, the reports are very much part of the “transnational” legal process that Koh celebrates.

Transnational legal value? I think there is an irony that the person providing legal advice to the State Department is actually touting stripping away national sovereignty. Is this the person we want guiding our international policies? I believe that the discussion of these issues is fair game, and I’ve gone back to read some of Koh’s work (I didn’t understand it). In the theoretical world we have room to envision the direction of where we would like to get to, go through intellectual exercises on hypotheticals, etc. and there is a lot of value in that process that can help us get to a better place as a society. That being said, reality is often a little murkier, with conflicts of interest, with conflicting priorities, with transaction costs, with friction, etc. I just hope that in the end, Koh, as a beaurocrat on behalf of the United States has the United States’ best interest at heart rather than proving some theory. In finance, theoreticians detached from reality do not have a good track record.

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