by John Armor
On special occasions, I wear a red silk tie printed with 56 signatures, all but one of them in black; the featured one in white is “Th. Jefferson.” The names are, of course, the signers of the Declaration of Independence. When asked, I tell folks I practice law for a bunch of dead guys. They pay me nothing. But it is an honor to represent them, especially when it reaches into the Supreme Court.
That brings me to President Obama’s nomination of Harold Koh, Dean of Yale Law School, as Legal Advisor to the State Department. This nomination is a symptom of a constitutional disease that will cause great, and possibly fatal, damage to our Constitution in the next four years.
That is a bold and harsh charge. Here is the proof:
Dean Koh has repeatedly written and said that interpretation and application of the U.S. Constitution should be “guided” or “influenced” by the “laws and judicial decisions of other nations.” There is no doubt on this. As they say hereabouts, he’s said this “in front of God and everybody.”
Look at his position first from a practical standpoint. The United Nations has 192 member nations. Of those, a majority are dictatorships of some kind. And of that majority, a majority are barbaric states which claim and exercise the “right” to execute citizens on the spot for their politics, their religions, their sex, or their objections to the current administration.
If one takes a consensus from this motley crew, there are many conclusions that are the polar opposite of the principles in American government. These include democratic elections, freedom of the press, non-discrimination between citizens based on religion, politics
, or sex.
Does the United States do a perfect job of carrying out these principles? Of course not. We have amendments in the Constitution that are monuments to improvement of our efforts. However, we are light years ahead of the majority of the world’s governments, whose constitutions contain deliberate continuations of censorship, discrimination, and restriction (or elimination) of free elections.
Harold Koh wants to use this gaggle of bad governments as a template for American judicial decisions because he seeks to avoid American law and American legislatures who have not made the “right decisions” in areas he personally favors, such as abolition of the death penalty. He talks law, but he’s really just a politician.
His legal conclusions are even more dangerous than just that. They are so dangerous they make me fear for the Constitution, fear the results of four years of President Obama, and ashamed of my degree from Yale. Here’s why:
The Constitution in its text says that it is “the supreme Law.” Madison, Hamilton and Jay, in The Federalist, patiently explained why the Constitution had to be superior to all other sources of law. As Hamilton wrote in the Federalist No, 33, this clause only “declares a truth, which flows immediately and necessarily from the institution of a federal government.”
As George Washington wrote in his Farewell Address to the American People, the Constitution is “sacredly obligatory upon all” until changed by “the authentic act of the whole people.” By that he meant amendment through use of Article V, through Congress and the state legislatures.
So, Dean Koh is attacking the Constitution itself. He is also attacking the Declaration of Independence, which declares that governments derive “their just powers from the consent of the governed.” By trying to change the Constitution without using Article V, Koh is attacking the fundamental principle of American government, control of our own government.
It is appalling that such a man would ever be appointed to lead any American law school. Since his politics control his legal principles, like many other appointees in the Obama Administration, he shows that Administration is a continuing danger to the Constitution itself.
Either Koh is an illiterate who has not read the Constitution and the Federalist, or he is a bald-faced liar when he talks about this subject. His resume indicates that he can read, so I conclude that he is a liar.
The Obama Administration proposes to put him in the second-most dangerous spot for his constitutional ignorance, at the State Department. The worst place would be as a new Justice on the Supreme Court. It looks like this President is prepared to find and appoint another Koh when, inevitably, such a vacancy occurs.
FamilySecurityMatters.org Contributing Editor John Armor practiced in the U.S. Supreme Court for 33 years. He is counsel to the American Civil Rights Union.
