The Elephant in the Room: Obama vs America

Philadelphia InquirerRick 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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