Continuing our Ed Whelan watch, he’s begun a series of posts attacking Koh and a bogeyman version of “transnationalism” – which transforms in Whelan’s posts into the means through which an international conspiracy will undermine American sovereignty. So as I have time, I’m going to address some of his anti-Koh posts. So let’s start with his first one.
Whelan cites selectively from two Koh articles. Below, I’ve provided Whelan’s excerpt from one of those articles. Note that Whelan’s theme is that Koh and transnationalists want to substitute international law for domestic law (or at least to use international law to ignore domestic law). Whelan writes:
Note the bolded part. Koh didn't actually say that. Here’s the actual extended quote from Koh’s article:
Koh’s point isn’t that we should ignore domestic law – or treat it as non-existent. His point is entirely different. He's simply explaining that there are new legal developments that are best described as transnational – and that these specific developments blur the line between domestic and international, local and global.
Koh is essentially saying that “a platypus blurs the line between mammal and bird.” That is, he’s observing and describing a phenomenon and urging us to take note of it. Whelan, however, is representing Koh’s words as saying, “Koh thinks mammals don't really exist.” The existence of something that doesn't fit into a certain category doesn't eliminate the category altogether.
That’s what makes Whelan’s posts so nativist. It’s one thing to disagree about the relevance of international developments, or even about how to describe those developments. But to Whelan, all of Koh’s descriptions (along with Koh's more limited normative suggestions) mutate into calls to wholly ignore domestic law. But that’s not at all what Koh is saying – though misrepresenting Koh will probably help Whelan’s posts get picked up by the know-nothing nativist wings of the conservative media world.
As for the other Koh article that Whelan cites, it too is portrayed as some wild-eyed attempt to supplant domestic law with international law. Koh’s actual argument, however, couldn’t be less controversial. He’s simply saying that American courts have – from the founding – historically looked abroad to inform their judgments, and that they should continue doing so today.
Honestly, I’m baffled as to why so many legal conservatives get in an uproar about this. When you’re construing ambiguous constitutional and statutory text, you look to lots of different things – English common law, policy, state precedent, the Webster’s Dictionary, etc. All Koh is saying is that international law is one of those things we can consider. It’s almost laughable how non-controversial this is. He isn’t saying we should supplant our own law – he’s saying we should sometimes in some instances look abroad to help inform our judgment. That’s how the scientific process works after all. I mean, personally, I think it's noteworthy that only the United States and Iran openly executed children in 1999.
And to illustrate how utterly common this practice is, consider this passage from Chambers v. Florida (1940) written by Hugo Black. Here, the Supreme Court found a due process violation after a mob in Florida rounded up a bunch of African-Americans and beat confessions out of them. After citing various English legal authorities from the colonial era and before, Black wrote:
Of course, under Whelan’s view, we can’t even consider any of this stuff in construing the due process clause. Hugo Black quite clearly wanted to supplant good ol’ fashioned American law with effete European latte law.
It’s hard to overstate just how nonsensical these arguments are.