Ed Whelan is bringing the full crazy on Harold Koh – alleging that Koh’s “transnationalism” is some sort of global elite conspiracy to conquer the world. He writes:
Gotcha. If you look closely, you’ll see that this type of nativist paranoia is simply a more intellectual version of Rep. Bachmann’s imaginary conspiracy to replace the dollar. It’s certainly in the same family. Anyway, expect to hear more about “transnationalism” from the usual suspects. (You can read a more informative conservative description here by Eric Posner, though he's clearly not a fan).
I want to make a few points here before the attacks on Koh get out of hand. First, a big part of Koh’s transnationalism is simply descriptive – that is, his scholarship aims to describe how and why various international laws and norms are obeyed given the lack of a true international enforcer.
Remember that there’s a difference between descriptive and normative arguments. If I say, “the death penalty hasn’t caused a drop in murders,” I’m simply describing a set of facts. Of course, I might go on and argue normatively that we should scrap the death penalty – but then again, I might not. Maybe I would prefer keeping the death penalty out of a sense of justice and fairness. Anyway, the point is that descriptive arguments are different from normative ones.
Turning back to Koh, a major aspect of his work is to provide a descriptive account of phenomena that everyone concedes occur. For instance, why is it that countries and non-state actors like corporations often follow international law – and appeal to it – even though there is no obvious enforcer? How and why does international law change and evolve? How do the norms and laws of one country migrate to other countries and become incorporated into domestic law? All of these things happen – the question is why.
And that’s what a big part of Koh’s work is all about. He discusses how these processes work by providing a descriptive framework. He argues that law (the legal process itself) generates norms that become internalized through various actors including (but not limited to) courts. (This is all grossly general obviously).
In doing so, he’s also arguing against other schools of thought with alternative descriptive frameworks. One of these schools, for instance, argues that international law is essentially meaningless, and that countries only follow it when it’s in their “interest” to do so. To Koh, law matters – it has agency in a descriptive sense. It is not merely superstructure.
To be sure, Koh has – over the course of 175 law review articles and 8 books – made several normative arguments too, some better than others. Perhaps he is even guilty of the outrageous offense of encouraging our own country to adopt international norms against executing children. (No word yet on whether the Webster’s Dictionary is an equally offensive foreign and extralegal source for informing interpretations of vague centuries-old text).
But all of this is a far cry from the wild conspiracy theories that Whelan is peddling. He’s making “transnationalism” seems like a cryptic Stonecutters society that is bound and determined to transform the world. That's how liberals are perceived in the paranoid, monster-creating, Othello-like mind of the Lou Dobbs crowd. But that's not exactly reality.
In short, Whelan is treating Koh’s transnationalism as if it were 100% normative and activist. But the most significant contribution of transnationalism is arguably descriptive. It’s describing how (and that) these norms get internalized and are followed.
Plus, Whelan is treating the very word “transnationalism” itself as a bogeyman. But when you lose the nativist know-nothing blinders, you’ll see that it just refers to the interplay of international and domestic law. This interplay is evident across a number of legal fields – including constitutional law. Maybe Whelan can square his abhorrence of transnationalism with the fact that several conservative judges and scholars want to interpret constitutional text by looking to legal norms from colonial-era British law.
In fact, originalism is a much stronger version of normative transnationalism than anything Koh has proposed. It wants to interpret much of the Constitution by looking solely to British law.
Originalists will respond, of course, that the Constitution simply re-ratified the British common law. But I missed the constitutional provision that incorporated Blackstone’s Commentaries as the required canon of interpretation. Though it’s quite possible I was hungover that day in law school.
In all seriousness, these are pretty shameful attacks on a very good and very qualified man. He deserves better than these Bachmann-Dobbs style nativist rants.