Over at Volokh Conspiracy, Eric Posner offers a summary of the debate behind the Harold Koh debate:

how much [should] American law, and in particular, American judicial decisionmaking. . .be influenced by foreign and international legal norms[?]

Posner breaks down the main areas of disagreement and the arguments put forward by each side.  Here’s one of his key points:

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.

I don’t think that’s an accurate portrayal of the “foreign law” [Posner's term] position.  The argument isn’t over whether America should be exceptional, but rather whether it is exceptional.  Most advocates of international law — including Koh — do believe that the United States is an exceptional nation.  In his speeches as Assistant Secretary of State for Democracy, Human Rights and Labor, Koh often talked about “the American way,” noting the heroic efforts of average Americans throughout U.S. history to push the U.S. Government to live up to its principles.

What international law advocates argues is sometimes even a democratic nation can take actions that are undemocratic and/or violate human rights.  As I’m sure even Alexander Hamilton would argue, the judiciary exists to serve as a check against the possibility that the electorate (or their representatives) will take actions contrary to the Constitution and Bill of Rights.  International law advocates are merely suggesting that in doing so, courts should take into consideration both U.S. law and evolving international standards.

Despite my disagreement with this and several other of Posner’s characterizations of the international law side of the debate, the whole piece is worth reading.

Related posts

• Your Long National Nightmare Is Over
• You’re Such a Blockhead, Charlie Brown
• You Know You’re Out of Touch. . .
• Transnationalism?
• The Transition