Curtailing our representative democracy — Harold Koh hides the ball

Ed Whelan continues his examination of the “transnationalist” record of Harold Koh, who has been selected to be the State Department’s legal advisor in the Obama administration. I collected and discussed some of Ed’s previous posts on this subject here.

Ed’s latest pieces focus on Koh’s advocacy of U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW was adopted in 1979 by the United Nations, which proposed it as an international treaty. President Carter signed the treaty, but the Senate never ratified it.

By signing CEDAW, a nation agrees “to pursue by all appropriate means and without delay a policy of eliminating discrimination against women.” Such discrimination is defined as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” Plainly, there is plenty of room for interpreting this definition to mandate a radical feminist agenda.

Ed shows that by June 2002, when Harold Koh went before the Senate Foreign Relations Committee to urge that the Senate consent to CEDAW, the treaty had been interpreted to entail precisely such a radical agenda. Specifically, the CEDAW committee, which exercises a supervisory role over the implementation of CEDAW, had issued a series of reports interpreting what CEDAW means on such issues as abortion, prostitution, lesbianism, religion, Mother’s Day, “gender studies,” “redistribution of wealth,” comparable worth (not to be confused with equal pay), and quotas. In each instance, of course, the CEDAW committee construed CEDAW to entail the radical feminist postion.

Koh neglected to mention any of these interpretations in his Senate testimony. In this post, Ed shows (a) that Koh almost certainly knew about the radical interpretations by the CEDAW committee, and (b) that Koh considers these interpretations important. Indeed, in a brief Koh filed in Lawrence v. Texas, supporting the view that the U.S. Constitution prohibits the criminalization of private homosexual conduct between consenting adults, Koh emphasized the interpretive authority of the CEDAW committee when he contended that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.”

It seems clear, therefore, that Koh declined to mention the interpretations of the CEDAW committee to the Senate because he was attempting to hide the ball. As Ed puts it, “Koh deliberately chose not to be–let’s put the matter as delicately as possible–forthright with the members of the committee and the public generally.”

Which is pretty much the choice you have to do when your goal is to strip Congress and the public of their power to make our laws and determine our national destiny.


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