Now that Harold Koh is on his way to confirmation, it may be possible to discuss why some people (not me) opposed his appointment while others pooh-poohed their objections and accused Koh's critics of ad hominem attacks. The foreign law debate is, in fact, an important one, with much at stake, and it deserves a better airing than it has received in the blogosphere so far. This is the first of two posts that will discuss the debate.

First, a word about Koh himself and vocabulary. Koh has called his own work "transnational legal process;" his opponents have therefore called him a "transnationalist." Peter Spiro has given the equally ugly label, "sovereigntist," to people on the other side. (Koh himself has called them "nationalists," which of course has ugly connotations.) None of these labels are any good. Koh's own work hardly exhausts or even represents well the pro-foreign law position, as I will call it (also not a good label but at least lacking pejorative overtones). Most people who take this position don't refer to themselves as transnationalists, and disagree with each other about many particulars. What is true is that two clusters of positions have emerged on either side of a divide over the question how much American law, and in particular, American judicial decisionmaking, should be influenced by foreign and international legal norms. Because of Koh's nomination to the state department, he has become a symbol of the pro-foreign law position, which he has enthusiastically celebrated throughout his career.

The current debate addresses four issues. The first concerns the extent to which American courts should "incorporate" international legal norms into domestic (non-constitutional) law. The pro-foreign law position is that courts should interpret ambiguous statutes so as to conform with international law (as reflected in the Charming Betsy doctrine, but more systematically than courts have willing to do so far); incorporate customary international law into federal common law; presume that treaties are self-executing (a part of domestic law) and are judicially enforceable; refrain from deferring to executive branch interpretations of international law; and stop ducking international law disputes on justiciability grounds. Together, these and other positions would make it easier for the political branches to create domestically enforceable international law, or (put differently) harder for those branches to avoid doing so when acting in the area of foreign relations, and harder for them to violate international law when they might otherwise want to. The skeptics prefer more limited interpretations of these doctrines and greater deference to the executive branch.

The second issue concerns the degree to which the United States should throw itself into the project of "advancing" international law and international institutions. The pro-foreign law people want the United States to enter treaties and institutions even when there may be doubts as to whether they serve U.S. interests in a narrowly defined way. They want the United States to use and support international courts like the International Criminal Court and the International Court of Justice even though skeptics point out ways that these institutions could make and, in the second case, have made trouble for American interests. The foreign law people lament the American tendency to pick and choose among multilateral treaties, and to qualify U.S. commitments with reservations, understandings, and declarations—when much of the rest of the world is less discriminating (and skeptics would say, less likely to take their commitments seriously). For the supporters of the foreign law position, American leadership on these issues will advance the (somewhat ill-defined) international rule of law, the idea that power and violence in foreign relations can be replaced with reason and argument. For skeptics, this is utopianism.

The third issue concerns one particular statute, the Alien Tort Statute, which gives federal courts jurisdiction to hear tort cases brought by aliens against violators of international law. These cases have been brought by victims of human rights abuses against security agents, former heads of state, and multinational corporations—virtually all of them involving foreigners and actions that occur on foreign territory. Many ATS cases are symbolic but the cases brought against corporations have put money at stake. Skeptics believe that these cases interfere with American foreign policy which, in the hands of presidents of both parties, has always been far more pragmatic, willing to deal with, rather than impose sanctions on, dictators and those who do business with them.

The fourth issue concerns the use of foreign and international law to interpret the U.S. Constitution. It is this issue that has received the most public attention. In a small number of recent cases, the Supreme Court has ruled that certain American practices—the juvenile death penalty, execution of retarded people—violate the U.S. Constitution, and in the course of making this argument has cited foreign and international law that suggests that most of the rest of the world disapproves of these practices. Skeptics disagree with this jurisprudential approach.

It is wrong to say—as so many bloggers have—that these issues are easy and that Koh's critics are inventing controversies that don't exist. What is true is that, so far, not much has been at stake. The juvenile death penalty did not have many defenders and the foreign and international citations in Supreme Court cases have seemed like window dressing, not drivers of outcomes; few ATS cases lead to money changing hands; and the controversies over statutory interpretation and federal common law are obscure. International institutions like the ICJ and ICC are too weak to pose a threat to American interests. But as is so often the case, relatively minor events can take on huge symbolic importance because they make especially clear or newly salient deep disagreements about principle that divide Americans. The skeptics are less concerned about the particular outcomes that have been reached so far, than what lies at the bottom of the slippery slope—which is where the foreign law advocates, by their own admission, want to take the United States.

Before I get to these disagreements, I also want to address the frequently made claim that "mainstream" legal academics take Koh's side on all these issues. This is partly true, but most mainstream legal thinkers have not contributed to the debate. For many years, the positions on the first three issues hardened as a small number of like-minded people wrote articles agreeing with each other. I don't think there was serious debate about them until Curtis Bradley and Jack Goldsmith published a major article attacking the federal common law view in 1997. On the question of America's role in international institutions, there has been a lively debate among political scientists for decades—just one that law professors never joined. On the issue of constitutional law interpretation, it's wrong to say that this debate has been settled. All of the conservatives who consider themselves originalists, and many others as well, reject the use of foreign and international law for constitutional interpretation; and although originalism remains highly controversial, it can't be simply ignored. The debate on this issue has barely begun. Finally, even if "mainstream" legal academics take a relatively uniform pro-foreign law view, it's far from clear that their view is that of the courts and other "mainstream" American institutions. Indeed, the foreign law advocates have spent a lot of time urging the courts and the executive branch and Congress to take a more positive approach to international law than they have before; Koh has always been explicit that he is an advocate, not a defender of the status quo.

In my next post, I will try to explain why these disagreements exist.

Continued from here.

What divides the two groups in the foreign law debate? I will make a few conjectures, again with the proviso that I am supplying broad generalizations and do not mean to attribute any of these views to any particular person (including Koh) on either side of the debate.

Doctrine. Much of the debate in the academic literature has been carried out at the level of doctrine. The Bradley and Goldsmith article I mentioned in my previous post made a doctrinal argument, about what courts really do or should do; their critics took issue on these grounds. In his series of posts criticizing Koh, Ed Whelan also made doctrinal arguments. Whelan's many critics made doctrinal arguments (you can find many of their posts at the Opinio Juris blog). My view is that doctrine does not get you very far. There are too few cases, going in all directions. A dull, dispiriting, and inevitable debate about what the founders believed has gone nowhere. The passions involved tell you that more is going on than a disagreement about what the sources say.

Politics. There is a clear left/right divide, with the left favoring the foreign law position. (In academia, "right" means something like center. Outside academia, though, "right" really does mean right, far- as well as near-.) Conservatives suspect that people on the left like foreign and international law because those people believe that these bodies of law tend to be more left-wing than American law is. (Whether international/foreign law is in fact farther to the left than American law is a question best left for another day. For too many people, the rest of the world consists of Europe rather than Iran, China, or Russia.) They note that people like Koh spend a lot of time discussing European attitudes toward the death penalty but not the European laws banning political parties or the worldwide trend toward restrictions on "defamation of religion." More is going on, however. These political positions reflect broader ideological and institutional commitments.

Institutional commitments. The left and right disagree about more fundamental issues, such as constitutional interpretation; these issues are implicated by the foreign law debate. Conservatives see an attack on originalism, which leaves little room for foreign law, and what for them is the typical liberal's excessive faith in the judiciary and distrust of the executive. The pro-foreign law positions are mostly about how the courts can take an active role in promoting international law. In their darkest nightmares, conservatives see a new generation of liberal judges selectively importing liberal norms into American law by citing foreign and international law—just when the conservatives thought they were on the verge of winning the debate on originalism.

American exceptionalism. Deeper still is the question of how Americans see themselves in the world. For conservatives, America is the exceptional nation. Other states should imitate the United States, not the other way around. Conservative or not, this is also mainstream public opinion. The pro-foreign law people, like most academics, reject American exceptionalism: the United States is an ordinary nation—good in some ways, bad in others. The United States needs to be disciplined and constrained, so that it is compelled to take into account the values and interests of other people in the world. The executive and legislative branches have no incentive to do this because only Americans can vote in U.S. elections. For this reason, only the courts, with their unelected, globe-trotting judges, can put a break on American exceptionalism.

It is this last issue which has made the foreign law debate politically explosive. Liberal academics have detected in the courts occasional dim glimmerings of awareness that the United States does not treat foreigners fairly. The academics seek to nurture this little plant, but the real basis for their view is not doctrinal but cosmopolitan—the particular cosmopolitan view that the fact of one's birth on one side of a border or another is morally arbitrary. This view throws democracy itself—at the national level—into question and pulls the rug out from under one of the chief rationales for originalism and for judicial restraint—that they prevent judges from interfering with democratic outcomes. Modern democratic theorists believe that foreigners should have a say in American policy, at least to the extent that American policy affects them. Their followers in the legal academy have taken the next logical step, concluding that if the political branches will not give foreigners a vote, or at least take their views more seriously than in the past, then the courts must figure out some other way to protect foreign interests. Incorporating foreign and international law is the way to do this.

The problem for these people, and a problem that conservatives have been quick to exploit, is that cosmopolitanism has little popularity among Americans. Koh himself has resolved this dilemma simply by claiming that whatever is cosmopolitan is in America's interest—that the American and global interest converge in a standard set of Democratic party policy prescriptions. But few will be persuaded by this argument.

The foreign law position, then, is politically vulnerable, while at the same time philosophically coherent and highly appealing to liberals and indeed sophisticated people of other political stripes who dislike America's thuggish behavior on the international stage. In this way, it has a lot in common with Warren Court constitutionalism and, depending on how political winds blow, may someday likewise enjoy a moment in the sun.