Koh explained the differences between these two judicial philosophies. According to Koh, transnationalist judges look to U.S. interdependence, whereas nationalists tend to look to U.S. autonomy. Transnationalists think about how U.S. law fits into a framework of transnational law, while nationalists see a rigid foreign and domestic divide. Transnationalists think that courts can "domesticate" international law (make it part of our law), whereas nationalists think that only the political branches can. Transnationalists favor the development of a global legal system, while nationalists prefer a national legal system.
In other words, nationalists don't believe that it's appropriate to look to foreign law in interpreting our Constitution. They believe that only the political branches, not the courts, can adopt provisions of international law, and they don't believe in slavish deference to global legal authorities, such as the International Criminal Court.
Transnationalists clearly believe in an ever-changing, living Constitution and reject originalism (interpreting the Constitution according to its original understanding). They are obviously globalists, not overly concerned with American's national sovereignty. They see the international community, in the words of Koh, as a "community of reason" and believe that American judges, in interpreting our Constitution, can resort to this "community of reason" (foreign laws) to choose between two "plausible" legal positions. Indeed, Koh wrote approvingly of United States Supreme Court decisions acknowledging "evolving standards of decency" and that we may look to this global community of reason to determine what those standards are.
If any of this is too legalistic, let me quote from Koh's "Jefferson Memorial Lecture on Transnational Legal Process After September 11," published in the Berkeley Journal of International Law.
In his introductory remarks, Koh said the United States, along with North Korea and Iran, form "the axis of disobedience," that is, those nations "whose disobedience with international law has attracted global attention after Sept. 11." Are you beginning to see the picture here?
If not, try his testimony before the Senate Judiciary Committee on Sept. 16, 2008, in which he lamented that the Bush administration forfeited the "universal sympathy" America enjoyed as a victim of the 9/11 attacks with a "series of unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law," including Abu Ghraib, Guantanamo, torture, indefinite detention of enemy combatants, military commissions, warrantless wiretaps, evasion of the Geneva Conventions and international human rights treaties, excessive government secrecy, attacks on the United Nations, and others.
It's no surprise to me that President Obama seeks to install as assistant State Department legal counsel a man who, like George Soros and a host of ultra-left-wing bloggers, believes America is always the bad guy and that we should rehabilitate ourselves through following the wisdom of foreign nations and international bodies.
Does it surprise you?