That’s the title of my latest Examiner column. The subject is Harold Koh, the Obama administration’s nominee to be the State Department’s legal advisor.
Koh is probably the leading advocate of legal “transnationalism.” He seeks to import those parts of foreign law that likes into our legal system in order to overcome that which he dislikes about the United States. In his words:
[L]lawyers, scholars, and activists. . .should make better use of trans-national legal process to press our own government to avoid the most negative and damaging features of American exceptionalism.”
This approach stands in opposition to the traditional, democratic view that the United States should determine for itself, through its political branches, what its laws will be and whether (or to what extent) international law shall be incorporated into its legal system.
Koh’s project would make Obama’s projects considerably easier. By incorporating the “progressive” aspect of foreign laws into our law we would not only gain the goodwill of European elites, but would also become more progressive ourselves. And, to the extent that foreign law is incorporated into our system, Obama will be more inclined to faithfully execute “American law.”