http://www.philly.com/inquirer/opinion/20090409
The Elephant in the Room: Obama vs. United States
The president is contemptuous of American values. And one key nominee
prefers the judgment of other countries and global elites.
By Rick Santorum
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? Why not, indeed: Koh thinks
"international comity" trumps American sovereignty. He believes that,
since certain nations recognize a right to same-sex marriage, our
courts should, too. He wrote that "the principles of human dignity and
autonomy that are the essence of the modern right-protecting democracy
demand that civil marriage be available to all couples and that the
equality of all citizens triumph over historical attitudes."
What's beneath this legal jargon? Simply this: Even if marriage in
Pennsylvania has always been understood as involving one man and one
woman - even if Pennsylvanians, through referendum or constitutional
amendment, decide it should remain so - none of that should count. What
should count are the views of courts in other nations or international
bodies.
"I'd rather have [Supreme Court Justice Harry] Blackmun, who used the
wrong reasoning in Roe to get the right results," Koh wrote of the
landmark abortion case, "and let other people figure out the right
reasoning."
Stunning and revealing: Koh tells us it doesn't matter if the right to
abortion can be found in the Constitution. In fact, he concedes that
Blackmun's reasoning was wrong. But it is up to others to get it right.
How? By finding out what the United Nations, European Union, or
particular European nations think.
Koh tops the list of Obama's potential Supreme Court nominees. Is this
what Sen. John Kerry meant when he once suggested that American policy
must pass a "global test"? Or what Barack Obama meant when he said last
week that we have failed to "appreciate Europe's leading role in the
world"? Or when he spoke of "change we can believe in"? And just who
are "we"?
The Elephant in the Room: Obama vs. United States
The president is contemptuous of American values. And one key nominee
prefers the judgment of other countries and global elites.
By Rick Santorum
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? Why not, indeed: Koh thinks
"international comity" trumps American sovereignty. He believes that,
since certain nations recognize a right to same-sex marriage, our
courts should, too. He wrote that "the principles of human dignity and
autonomy that are the essence of the modern right-protecting democracy
demand that civil marriage be available to all couples and that the
equality of all citizens triumph over historical attitudes."
What's beneath this legal jargon? Simply this: Even if marriage in
Pennsylvania has always been understood as involving one man and one
woman - even if Pennsylvanians, through referendum or constitutional
amendment, decide it should remain so - none of that should count. What
should count are the views of courts in other nations or international
bodies.
"I'd rather have [Supreme Court Justice Harry] Blackmun, who used the
wrong reasoning in Roe to get the right results," Koh wrote of the
landmark abortion case, "and let other people figure out the right
reasoning."
Stunning and revealing: Koh tells us it doesn't matter if the right to
abortion can be found in the Constitution. In fact, he concedes that
Blackmun's reasoning was wrong. But it is up to others to get it right.
How? By finding out what the United Nations, European Union, or
particular European nations think.
Koh tops the list of Obama's potential Supreme Court nominees. Is this
what Sen. John Kerry meant when he once suggested that American policy
must pass a "global test"? Or what Barack Obama meant when he said last
week that we have failed to "appreciate Europe's leading role in the
world"? Or when he spoke of "change we can believe in"? And just who
are "we"?
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