[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF AMERICAN 
                                  LAW

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                                   ON

                              H. Res. 568

                               __________

                             MARCH 25, 2004

                               __________

                             Serial No. 67

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

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                            WASHINGTON : 2003
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                  Mindy Barry, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member


                            C O N T E N T S

                              ----------                              

                             MARCH 25, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Adam B. Schiff, a Representative in Congress From 
  the State of California........................................     4
The Honorable Tom Feeney, a Representative in Congress From the 
  State of Florida...............................................     5
The Honorable Steve King, a Representative in Congress From the 
  State of Iowa..................................................     7

                               WITNESSES

Mr. Jeremy Rabkin, Professor of Government, Cornell University, 
  Ithaca, NY
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Ms. Vicki Jackson, Professor of Law, Georgetown Law Center, 
  Washington, DC
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Mr. Michael D. Ramsey, Professor of Law, University of San Diego 
  Law School, San Diego, CA
  Oral Testimony.................................................    18
  Prepared Statement.............................................    21
Mr. John Oldham McGinnis, Professor, Northwestern University 
  School of Law, Chicago, IL
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Steve Chabot, a 
  Representative in Congress From the State of Ohio, and 
  Chairman, Subcommittee on the Constitution.....................     3
Prepared Statement of the Honorable Jim Ryun, a Representative in 
  Congress From the State of Kansas..............................     7

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable J. Randy Forbes, a 
  Representative in Congress From the State of Virginia..........    57
Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress From the State of Virginia..........    58
Prepared Statement of the Honorable Tom Feeney, a Representative 
  in Congress From the State of Florida..........................    58

 
APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF AMERICAN 
                                  LAW

                              ----------                              


                        THURSDAY, MARCH 25, 2004

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot, 
(Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. I'm Steve 
Chabot, the Chairman of the Subcommittee on the Constitution. 
We welcome the panel here this afternoon, and I recognize 
myself for the purpose of making an opening statement.
    Article IV of the Constitution clearly provides that ``This 
Constitution and the laws of the United States which shall be 
made in pursuance thereof shall be the supreme law of the 
land.'' However, today an alarming new trend is becoming clear: 
Judges, in interpreting the law, are reaching beyond even their 
own imaginations to the decisions of foreign institutions to 
justify their decisions.
    This hearing on H. Res. 568 will explore the 
appropriateness of citations to foreign authorities for the 
interpretation of American law. H. Res. 568 was introduced by 
Representatives Feeney and Goodlatte, and it is currently 
cosponsored by myself, Mr. King, and many other Members of the 
House Judiciary Committee and some 60 other Members of 
Congress. It expresses a sense of the House that judicial 
determinations regarding the meaning of the laws of the United 
States should not be based on pronouncements of foreign 
institutions unless such foreign pronouncements are 
incorporated into the legislative history of laws passed by the 
elected legislative branches of the United States or otherwise 
inform an understanding of the original meaning of the laws of 
the United States.
    In an October 28, 2003 speech, Supreme Court Justice Sandra 
Day O'Connor stated, ``I suspect that over time, the U.S. 
Supreme Court will rely increasingly on international and 
foreign courts in examining domestic issues.'' Justice 
O'Connor's prediction follows an already disturbing line of 
precedents in which the U.S. Supreme Court in several recent 
cases has cited decisions by foreign courts and treaties not 
ratified by this country to support their interpretations of 
the United States Constitution.
    As one commentator has written, ``The use of international 
sources and cases involving purely domestic concerns is alien 
to the American legal system historically and, if unchecked, 
will produce a further erosion of American sovereignty in 
addition to the mischief already done by these cases.'' Indeed, 
the Declaration of Independence itself announced that one of 
the chief causes of the American Revolution was that King 
George had ``combined to subject us to a jurisdiction foreign 
to our constitution and unacknowledged by our laws.''
    In Lawrence v. Texas, the recent decision striking down a 
Texas statute prohibiting same-sex sodomy, Justice Kennedy, 
writing for a majority, cites for support a decision by the 
European Court of Human Rights allowing homosexual conduct as 
evidence of a lack of world consensus on the illegality of such 
conduct. Whatever one's views on that issue, it should be 
evident that the relevant consensus behind American law is not 
a world consensus, but rather the consensus of those in the 
United States on the meaning of the words used in the 
Constitution and legislation when originally enacted.
    As Justice Scalia stated in his dissent in Lawrence, ``The 
Court's discussion of these foreign views (ignoring, of course, 
the many countries that have retained criminal prohibitions on 
sodomy) is meaningless dicta, dangerous dicta, however, since 
this Court should not impose foreign moods, fads, or fashions 
on Americans.''
    Two years ago, in the majority opinion in Atkins v. 
Virginia, Justice Stevens struck down laws allowing the 
mentally retarded to be sentenced to death on the grounds that 
``the practice has become truly unusual, and it is fair to say 
that a national consensus has developed against it.'' 
Strikingly, the footnote following that sentence, presumably to 
support the proposition of a national consensus, cites to the 
views expressed in the brief filed in the case by the European 
Union. This was, no doubt, a desperate means of hiding the fact 
that no such national consensus existed as the laws of 20 of 
the 38 States allowing capital punishment at the time allowed 
such executions.
    In Grutter v. Bollinger, which upheld the use of racial 
preferences in university admissions, Justice Ginsburg, in a 
concurrence joined by Justice Breyer, began by noting with 
approval that the International Convention on the Elimination 
of All Forms of Racial Discrimination allows the theoretically 
temporary maintenance of unequal or separate rights for 
different racial groups. She then cited analogous provisions of 
the Convention on the Elimination of All Forms of 
Discrimination Against Women, which, Justice Ginsburg noted in 
a speech a few weeks later, ``Sadly the United States has not 
ratified.'' As commentator Stuart Taylor, Jr. has written, ``If 
an international agreement that the United States has refused 
to ratify can be invoked as a guide to the meaning of the 136-
year-old 14th amendment, what will be next? Constitutional 
interpretation based on the sayings of Chairman Mao? Or Barbra 
Streisand?''
    The citation of foreign judgments in opinions by American 
judges is far out of the mainstream. Even Drew Days, former 
U.S. Solicitor General under the Clinton Administration, when 
asked about the Supreme Court's citation to a foreign authority 
in Lawrence, confessed that, ``It surprised me to see it in a 
majority opinion.''
    Americans, of course, are not subject to the dictates of 
one world government, but increasingly Americans are subject to 
the decisions of the United States Supreme Court that are 
based, at least in part, on selectively cited decisions drawn 
by a variety of foreign bodies. Americans' ability to live 
their lives within clear constitutional boundaries is the 
foundation of the rule of law and essential to freedom. There 
is no substitute for the unadulterated expression of the 
popular will through legislation enacted by duly elected 
representatives of the American people. The foundation of 
liberty turns to sand, however, when American must look for 
guidance not only to duly enacted statutes by elected 
legislatures and to decisions of American courts faithfully 
interpreting those statutes, but also to the often 
contradictory decisions of hundreds of other organizations 
worldwide.
    I look forward to hearing from all the witnesses here this 
afternoon, and the Ranking Member is not yet here; but, Mr. 
Schiff, I don't know if you wanted to make an opening statement 
on behalf of the minority.
    [The prepared statement of Mr. Chabot follows:]

 Prepared Statement of the Honorable Steve Chabot, a Representative in 
                    Congress From the State of Ohio

    Article VI of the Constitution clearly provides that ``This 
Constitution, and the Laws of the United States which shall be made in 
Pursuance thereof . . . shall be the supreme Law of the Land.'' 
However, today an alarming new trend is becoming clear: judges, in 
interpreting the law, are reaching beyond even their own imaginations 
to the decisions of foreign institutions to justify their decisions.
    This hearing on H. Res. 568 will explore the appropriateness of 
citations to foreign authorities for the interpretation of American 
law. H. Res. 568 was introduced by Representatives Feeney and 
Goodlatte, and it is currently co-sponsored by myself, Mr. King, many 
other Members of the House Judiciary Committee, and some 60 other 
Members of Congress. It expresses a sense of the House that judicial 
determinations regarding the meaning of the laws of the United States 
should not be based on pronouncements of foreign institutions unless 
such foreign pronouncements are incorporated into the legislative 
history of laws passed by the elected legislative branches of the 
United States or otherwise inform an understanding of the original 
meaning of the laws of the United States.
    In an October 28, 2003 speech, Supreme Court Justice Sandra Day 
O'Connor stated--quote--``I suspect that over time [the U.S. Supreme 
Court] will rely increasingly . . . on international and foreign courts 
in examining domestic issues.'' Justice O'Connor's prediction follows 
an already disturbing line of precedents in which the U.S. Supreme 
Court, in several recent cases, has cited decisions by foreign courts 
and treaties not ratified by this country to support their 
interpretations of the United States Constitution.
    As one commentator has written, the ``use of international sources 
in cases involving purely domestic concerns is alien to the American 
legal system, historically, and, if unchecked, will produce a further 
erosion of American sovereignty, in addition to the mischief already 
done by these cases.'' Indeed, the Declaration of Independence itself 
announced that one of the chief causes of the American Revolution was 
that King George had--quote--``combined to subject us to a jurisdiction 
foreign to our constitution and unacknowledged by our laws.''
    In Lawrence v. Texas, the recent decision striking down a Texas 
statute prohibiting same-sex sodomy, Justice Kennedy, writing for a 
majority, cites for support a decision by the European Court of Human 
Rights allowing homosexual conduct as evidence of a lack of world 
consensus on the illegality of such conduct. Whatever one's views on 
that issue, it should be evident that the relevant consensus behind 
American law is not a world consensus, but rather the consensus of 
those in the United States on the meaning of the words used in the 
Constitution and legislation when originally enacted.
    As Justice Scalia stated in his dissent in Lawrence,--quote--``The 
Court's discussion of these foreign views (ignoring, of course, the 
many countries that have retained criminal prohibitions on sodomy) is . 
. . meaningless dicta. Dangerous dicta, however, since this Court . . . 
should not impose foreign moods, fads, or fashions on Americans.''
    Two years ago, in the majority opinion in Atkins v. Virginia, 
Justice Stevens struck down laws allowing the mentally retarded to be 
sentenced to death, on the grounds that--quote--``[t]he practice . . . 
has become truly unusual, and it is fair to say that a national 
consensus has developed against it.'' Strikingly, the footnote 
following that sentence, presumably to support the proposition of a 
``national consensus,'' cites to the views expressed in the brief filed 
in the case by the European Union. This was no doubt a desperate means 
of hiding the fact that no such ``national consensus'' existed, as the 
laws of 20 of the 38 states allowing capital punishment at the time 
allowed such executions.
    In Grutter v. Bollinger, which upheld the use of racial preferences 
in university admissions, Justice Ginsburg, in a concurrence joined by 
Justice Breyer, began by noting with approval that the International 
Convention on the Elimination of All Forms of Racial Discrimination 
allows the theoretically temporary ``maintenance of unequal or separate 
rights for different racial groups.'' She then cited analogous 
provisions of the Convention on the Elimination of All Forms of 
Discrimination Against Women, which, Justice Ginsburg noted in a speech 
a few weeks later--quote--``sadly, the United States has not 
ratified.'' As commentator Stuart Taylor, Jr., has written, ``If an 
international agreement that the United States has refused to ratify 
can be invoked as a guide to the meaning of the 136-year-old 14th 
Amendment, what will be next? Constitutional interpretation based on 
the sayings of Chairman Mao? Or Barbra Streisand?''
    The citation of foreign judgments in opinions by American judges is 
far out of the mainstream. Even Drew Days, former U.S. Solicitor 
General under the Clinton Administration, when asked about the Supreme 
Court's citation to a foreign authority in Lawrence, confessed that--
quote--``It surprised me to see it in a majority opinion . . .''
    Americans, of course, are not subject to the dictates of one world 
government. But increasingly, Americans are subject to the decisions of 
a United States Supreme Court that are based, at least in part, on 
selectively cited decisions drawn from a variety of foreign bodies. 
Americans' ability to live their lives within clear constitutional 
boundaries is the foundation of the rule of law, and essential to 
freedom. There is no substitute for the unadulterated expression of the 
popular will through legislation enacted by duly elected 
representatives of the American people. The foundation of liberty turns 
to sand, however, when Americans must look for guidance--not only to 
duly enacted statutes by elected legislatures and to decisions of 
American courts faithfully interpreting those statutes--but also to the 
often contradictory decisions of hundreds of other organizations 
worldwide.
    I look forward to hearing from all our witnesses today.

    Mr. Schiff. Mr. Chairman, thank you. I'm just going to make 
a brief comment that doesn't as much go to the nature of this 
specific issue, but something as I see it as a trend that 
concerns me, and that is the deterioration of the relationship 
between the Congress and the courts. I think we need to work on 
strengthening the bonds between our two coequal branches of 
Government, and through a number of actions that the House has 
taken the last several years, I think we have strained the 
bonds of comity between the Congress and the courts. And I 
would hope that when issues like this come up, that there is 
every opportunity given to receive input from the Judicial 
Conference, that we in the appropriate way and through the 
appropriate channels try to ascertain the impact of our 
decisions on the Judiciary and treat the Judiciary as a coequal 
branch in recognizing their unique role in our form of 
Government.
    So I would hope that in our discussion of this issue and 
any other that we will work to facilitate that relationship and 
not further degrade it. Several of us have been working on 
establishing a new caucus within the Congress that's designed 
to improve communication between the Congress and the courts 
where we anticipate working closely with the justices, with the 
courts of appeals, with the State courts to try to improve the 
quality and the quantity of dialogue between our branches, and 
I didn't want to let this opportunity go by without raising my 
concern over the changing nature of the dialogue or lack of 
dialogue between our branches in the hope that we show an 
appropriate deference and respect to the Judicial Branch.
    And I yield back the balance of my time.
    Mr. Chabot. Thank you very much.
    Would the gentleman from Florida who is one of the two 
principal sponsors of the legislation like to make an opening 
statement?
    Mr. Feeney. Thank you very much, Mr. Chairman.
    In addition to Congressman Goodlatte, Congressman Ryun, and 
Congressman King, I have been very interested in this, as you 
have, Mr. Chairman. I want to associate myself with the 
comments of Mr. Schiff. I do believe it's important that we 
have a great deal of comity between the three branches. I also 
think it's important to have a dialogue, as he suggested. One 
of the ways, not the only one way we have dialogues, is through 
sending resolutions from the Congress, and so I hope we can 
have an enlightened discussion about this issue.
    I would also hope that we recognize the importance of an 
independent judiciary, but we ought to understand independence 
of the judiciary in its proper constitutional context. The 
judiciary should never have been independent of the 
Constitution or the laws of the United States themselves, 
because they give the foundation for the legitimacy for the 
judiciary in the first place.
    One of the things I would like to point out, Mr. Chairman, 
if I could, at the outset is what this resolution doesn't do. 
This resolution specifically doesn't say the courts can't use 
foreign laws when interpreting, for example, treaties or 
understandings between different States. It also basically 
would never prohibit a court from using the legislative intent 
for a congressionally-enacted statute. If we look to Germany 
for its health care laws or France for its education laws, for 
example, certainly it would be appropriate in divining the 
intent of the Congress to look into foreign issues that 
informed the creation of the legislation itself; and, finally, 
it doesn't prohibit any court from ever looking at foreign laws 
as long as those laws inform an understanding of the original 
meaning. What it would do is to suggest, of course, that they 
could not look at, for example, a recently enacted statute or a 
recently enacted constitution overseas to interpret a 
constitutional provision that may be 215 years old, for 
example.
    As the Chairman pointed out, increasingly Federal judges, 
including six United States Supreme Court justices, have 
expressed, in my view, disappointment in the original 
constitutional text that we inherited from our framers. In 
certain times, they have expressed disdain for laws enacted by 
democratically elected representatives. With disturbing 
frequency, they have simply imported new laws from foreign 
jurisdictions looking for more agreeable laws or judgments in 
the approximately 191 recognized countries throughout the 
world. They championed this practice and fancied themselves 
players on the international scene of juris prudential thought.
    And while we are not condemning in this resolution any 
specific decision, we have looked not only to the decisions 
that the justices have issued increasingly in the last 15, 20 
years, but also their comments off the bench which are very, 
very important to understand. The framers of our Constitution 
never suggested that we should be an island unto ourselves. We 
have the treaty power. We have the ability of the legislature 
to look to overseas laws and proposals. We've incorporated much 
of English and western civilizations' common law in our laws. 
We have provisions, under article I, that Congress can take the 
power to remedy offenses against the laws of foreign nations. 
But nowhere in the constitutional text ever does it suggest 
that we can have courts import foreign laws or foreign 
constitutional propositions.
    Madison basically said in '47 when he quoted Monesque, 
``Where the powers of judging join with the legislative, the 
life and liberty of the subject would be exposed to the 
arbitrary control for the judge who would then be the 
legislator.'' One of the problems we have with importing 
foreign law that's never been ratified by any of the political 
branches, the elected branches, is that judges have enormous 
discretion. There are some 191 recognized countries by the 
United States State Department, and how is a judge, if this is 
an appropriate process, to discern which of the countries is 
appropriate to cite and which of the countries is not, one of 
the things that some of the witnesses, I think, will address 
today.
    I note that Justice Breyer's speech to the American Society 
of International Law 97th Annual Meeting, April 4 of 2003, 
encouraged all of the professors and all of the lawyers and all 
of the law students to go out and research all of the 
international law, because he said the Supreme Court was 
incompetent because of the overwhelming body of constitutional 
law and statutory law to understand what all of these 191 
nations are doing, and I agree with them. They are not 
competent to do so, but I also would suggest to him that it is 
inappropriate for them to be encouraging lawyers to come before 
them and do this.
    Finally, citing Justice Breyer in that speech, he ends by 
talking about what an exciting revolution this is, and I quote 
him: ``What could be more exciting for an academic practitioner 
or judge than the global legal enterprise that is now upon us? 
Wordsworth's words written about the French Revolution will, I 
hope, still ring true.'' In quoting, and this is Wordsworth's 
great poem about the French revolution: ``Bliss was it in that 
dawn to be alive, but to be young was very heaven.''
    Well, my recollection about the aftermath in much of the 
French Revolution is that there was very little liberty as a 
result and much bloodletting. I'm here to defend the 
Constitution and liberty.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you.
    I would also like to announce that all Members will have 
five legislative days to submit additional material for the 
record, and without objection, I will at this time submit for 
the record a written statement by Congressman Jim Ryun, who has 
also been a leader in this effort.
    [The prepared statement of Mr. Ryun follows:]

   Prepared Statement of the Honorable Jim Ryun, a Representative in 
                   Congress From the State of Kansas

    MR. RYUN. Mr. Chairman, I appreciate your decision to hold this 
important hearing. The disturbing trend of the Judicial Branch 
utilizing foreign and international laws in deciding legal cases must 
come to an end. I firmly hold that this practice is dangerous and 
undemocratic. I would encourage the Judiciary Committee to report 
H.Res.568 out of Committee and for the House to pass this important 
resolution.
    In November 2003, I introduced a similar resolution, H. Res. 446, 
the Constitution Preservation Resolution, calling on the Supreme Court 
to stop using international law in its decisions. I saw the Supreme 
Court's increasing reliance on international law as a threat to the 
oldest democracy in the world and I stepped forward and took the lead 
on condemning their actions.
    I am pleased that my fellow legislators, Congressmen Feeney and 
Goodlatte, came together in sponsoring this bill which is substantially 
similar to original legislation and that will effectively communicate 
to the Judicial Branch that international law has no place in its 
decisions.
    Justice Antonin Scalia has been a leading advocate against this 
trend. In a dissenting opinion on Thompson v. Oklahoma he denounced the 
Court's plurality's reliance on international practice as ``totally 
inappropriate.'' He argued, ``The views of other nations, however 
enlightened the Justices of this Court may think them to be, cannot be 
imposed upon Americans through the Constitution.'' However, this is 
occurring in greater frequency.
    In the Lawrence v. Texas anti-sodomy case, the Supreme Court 
majority relied on a series of decisions by European courts on the same 
issue. Justice Anthony Kennedy wrote the majority opinion of the court, 
in which he cites and makes reference to international law four times. 
Kennedy specifically says that the European Court of Human Rights has 
rejected the law being debated in Lawrence v. Texas. He goes on to say 
that since there is no ``legitimate or urgent'' reason in other 
countries for this law, the United States has no reason either.
    In Akin v. Virginia, the Supreme Court noted that the world 
community overwhelmingly disapproved of executing the mentally 
retarded, and therefore found the practice unconstitutional.
    In Grutter v.Bollinger, Justices Ruth Bader Ginsburg and Stephen 
Breyer cited the International Convention on the Elimination of All 
Forms of Racial Discrimination in their concurring opinion.
    In Knight v. Florida, Justice Steven Breyer, in deciding a case 
focusing on allowable delays of execution, said he found ``useful'' 
court decisions on the matter in India, Jamaica and Zimbabwe.
    The Court's usage of international law and opinions in decisions is 
completely incompatible with our democratic values and the proper role 
of the courts in our constitutional system. The American people have 
had no opportunity to vote on any of these laws, and, in fact, many 
international laws are often developed by United Nation bureaucrats, 
without any democratic input.
    International law has no more place in our courts than foreign 
countries have in our elections. Foreign countries are expressly 
prohibited from influencing our elections. However, the Supreme Court, 
in using the laws passed by these countries to interpret and rewrite 
American laws, are achieving the same result--foreign interference in 
our government.
    The Supreme Court holds an important role in the Government as 
defined in the Constitution. However, this is not the role it is 
defining for itself. Judge Robert Bork said, ``If the views of foreign 
nations are relevant, they should be relevant to legislative debates, 
not in judicial interpretations of the Constitution.'' The Courts are 
overstepping their Constitutional boundaries. This Congress must keep 
the Court in check and pressure the Court to conform to its 
Constitutional role to decide cases based on the Constitution, not 
foreign laws or world opinion.

    Mr. Chabot. I'd now like to recognize the gentleman from 
Iowa, Mr. King, who is also a cosponsor and leader in this 
effort.
    Mr. King.
    Mr. King. Thank you, Mr. Chairman, and I thank you for 
holding this hearing today, and I'd like particularly to thank 
Congressman Feeney and Congressman Goodlatte, but in particular 
Congressman Feeney, who I believe has in the brief time I've 
been in this room delivered a lot of what needs to be said 
about this issue.
    And I would take it back to, and I don't know that it's 
been quoted specifically in opening remarks to this point, but 
article VI, and I would go so far as to say that not only 
should the courts not be considering foreign decisions, but 
also that the Constitution suggests to the contrary in that in 
article VI states, and I quote: ``This Constitution and the 
laws of the United States shall be the supreme law of the land, 
and the judges in every State shall be bound thereby''--and I 
would emphasize this--``anything in the Constitution or laws of 
any State to the contrary not withstanding.''
    I'll argue that our founders did not consider the concept 
of taking a look at foreign law with the exception of the 
common law and the references made by Mr. Feeney, and if they 
had considered a scenario of today, they would have considered 
also inserting the language ``anything in the Constitution or 
laws of any State or country notwithstanding.''
    So that's my specific argument, and to me it's just simply 
unbelievable that a Supreme Court justice would reference 
Zimbabwe. It violates the whole concept that I come to this 
with, and that is I'm seeing this activism, and I want to delve 
into that just a little bit, in that this, I will argue, is 
step one. The Constitution gives the Congress the authority and 
the responsibility to establish, and clearly establish, the 
separation of powers between the Legislative and Judicial 
Branch of Government, and it really isn't the Court's fault 
entirely that we are to this point where we have an activist 
court that's taken over so much authority from the Legislative 
Branch.
    I would argue that a year ago that the line between the 
separation of powers has been blurred by an activist court from 
the top all the way down through the system. Today, I'll tell 
you the line has been obliterated and by a number of different 
decisions. They have sent this message to this Congress that we 
will be dealing with whatever they let us deal with, but when I 
read the Constitution, it establishes that the Court will deal 
with whatever the Congress lets them deal with, with the 
exception of those specific responsibilities that are within 
the Constitution, and we know what they are, and the specific 
court, the Supreme Court, which is in the Constitution.
    So I think we've got a lot of work to do here, and I don't 
know that we have to do it in a radical fashion. I think we 
need do it in a step-by-step fashion, this being step one, and 
to send this resolution to limit the courts to the directions 
that Mr. Feeney has described here this morning, and I think we 
need to follow along with that and do a number of other things 
to brighten this line of the separation of powers.
    And another thing that I am concerned about is the activism 
that's being taught within our law schools today, the young 
people that believe that it is their job to go out and amend 
this Constitution by every opportunity of litigation that they 
have, and that kind of activism in the end tears this 
Constitution asunder, and the question that we need to get 
answered is if we are going to go down the path of activism, 
judicial activism, that sees the future of America in a fashion 
that's not accountable to the voice of the people, like we have 
to be, if we go down that path, what does the Constitution 
mean? What value has it? What is left of it that we can rely 
on, this Constitution that was established for liberty and for 
freedom and to ensure the rights of the minority as well as the 
majority?
    So that's my concern, and I'll pose this question: What's 
left of the Constitution if we amend it piece by piece by 
piece? Is it simply then a document that's gotten us from 1789 
to this point where we can be enlightened and move forward and 
develop our society and race us into the future at the 
direction of the courts, or is it a Constitution that's 
established to protect the rights of the minority and protect 
the timeless individual human rights that are denoted by our 
founding fathers?
    So I see this as a step along the way. Again, I thank all 
of the people that are principals involved in this resolution 
and the Chairman.
    And, Mr. Chairman, I yield back the balance of my time.
    Thank you.
    Mr. Chabot. Thank you.
    Would the gentleman from Indiana like to make an opening 
statement?
    [Mr. Hostettler gestures in the negative.]
    Mr. Chabot. Thank you.
    At this time, I'd like to introduce our very distinguished 
panel here this morning, and our first witness is Jeremy 
Rabkin, Professor of Government at Cornell University where he 
teaches courses on international law and American 
Constitutional history. He received his B.A. from Cornell and 
his Ph.D. in political science from Harvard.
    He has written widely on the emerging strains between 
American Constitutional principle and the current trends in 
international law. His book, ``The Case for Sovereignty'', will 
be published by AEI Press this spring, and a longer study, 
``Law Without Nations, Why Constitutional Government Requires 
Sovereign States'', will be published by Princeton University 
Press at the end of this year.
    And we welcome you here this morning.
    Our second witness is Professor Vicki Jackson of the 
Georgetown University Law Center. Professor Jackson is a 
graduate of Yale and Yale Law School. She has served as a law 
clerk to U.S. Supreme Court Justice Thurgood Marshall and was a 
Deputy Assistant Attorney General in the Office of Legal 
Counsel in the U.S. Department of Justice under the Clinton 
Administration.
    She is coauthor with Professor Mark Tushnet of a course 
book on ``Comparative Constitutional Law'' and serves as an 
articles editor for ICON, the International Journal of 
Constitutional Law.
    And we welcome you here this morning, Professor.
    Our third witness is Michael Ramsey, professor of law at 
the University of San Diego School of Law. Professor Ramsey is 
a graduate of Dartmouth and Stanford University Law School. He 
has clerked for Justice Scalia of the U.S. Supreme Court and 
practiced law with Latham & Watkins in San Diego. Professor 
Ramsey teaches Constitutional law and foreign relations law.
    And we welcome you here, Professor.
    And our fourth and final witness this morning is John 
McGinnis, professor of law at Northwestern University. 
Professor McGinnis earned his B.A. and J.D. from Harvard and 
his M.A. from Oxford University. He then clerked for Judge 
Kenneth W. Starr on the U.S. Court of Appeals for the District 
of Columbia. From 1987 to 1991, Professor McGinnis was Deputy 
Assistant Attorney General in the Office of Legal Counsel at 
the Department of Justice.
    So, as I said, we have a very distinguished panel here this 
morning, and we welcome all of you. We'll begin with Professor 
Rabkin. I might mention that we have, as you're probably aware 
of, a lighting system. We'd ask that you confine your testimony 
if possible, to 5 minutes. We'll give you a little leeway, but 
if you could perhaps do that. The yellow light will come on 
when there is 1 minute to go, and then when the red light comes 
on, if you could wrap up at that time, we'd appreciate it.
    We'll begin with Professor Rabkin. You'll need to turn the 
mike on there.

 STATEMENT OF JEREMY RABKIN, PROFESSOR OF GOVERNMENT, CORNELL 
                     UNIVERSITY, ITHACA, NY

    Mr. Rabkin. Thank you.
    First I want to congratulate the Committee. I do think this 
is a very important issue, and I'm very grateful to you for 
calling attention to this.
    Since I'm starting off, I'm going to approach this in the 
most general way, but I think it's the big picture that's 
important for us to hold on to. It's certainly true that you 
can find examples of American court decisions, Supreme Court 
decisions, citing what foreign jurisdictions have done, but to 
my knowledge, almost all of the cases like that, if you go back 
to earlier times, deal actually with international issues, and 
I think at the heart of this controversy that we're having now 
is does international any longer correspond to some defined 
limited body of law which we can say, no, okay, that's the 
international, and the rest is ours?
    The very term ``international'' was coined, as it happens, 
in 1789 by Jeremy Bentham, and what he--the reason he coined 
this phrase, he wanted to emphasize we're talking about, as he 
said, a law that involves the relations between sovereign 
states and therefore it is international; it is between 
nations. Once you have U.N. human rights conventions that 
purport to lay down standards about a whole wide range of 
things, should we have comparable worth for women workers, 
should children have the right to receive any kinds of reading 
materials they like, all kinds of things are now dealt with in 
U.N. convention, and it no longer corresponds in any way to 
things that are international.
    What we do in the United States, for example, on questions 
that involve women or feminist issues or, as in the Texas case, 
sexual freedoms, this has no direct relation to anything that 
happens in a foreign country. We aren't going to do it 
differently because they do it differently. We do not need to 
coordinate. There is no treaty there, or, indeed as Justice 
Ginsburg mentioned, there is a treaty, but we haven't ratified 
it. So why can't we just have our own country? And the thing 
you have to keep in mind is a lot of people are now saying, 
``Well, since there are treaties, it doesn't matter whether the 
United States has actually ratified them because there is 
customary international law.'' And what is customary 
international law? And if you look at a lot of law review 
articles, a lot of treatments, this is what those law students 
are being taught now. Customary international law is not what 
it used to be, which is what countries actually do in their 
relations with each other, but just what a lot of countries do. 
So you can start adding up how many countries say this, and if 
enough of them do, you can say in some general way that 
represents the view of the world community. Of course what that 
means is we no longer have our own Constitution.
    I make one point in my prepared testimony which I want to 
elaborate just briefly in the 2 minutes that remain to me. When 
you say world government, people roll their eyes and say don't 
be silly; we're not talking about world government. Okay. We're 
not talking about world government. What are we talking about? 
We're talking about coordination among judges. We certainly are 
talking about that. Now, what does that mean? It means that 
judges in different countries will buck each other up, reassure 
each other, lend each other moral authority by saying, yes, we 
all do this; yes, all over, yes; we're the world community.
    You don't need to talk about recent disputes between, say, 
Europe and the United States over Iraq or how to deal with 
terrorism. You don't need to call them surrender monkeys, but 
just focus on this for a minute. This model in which you can 
have judges dialoguing with each other and changing their 
national laws is something which they find very appealing in 
Europe because that is what the EU is. It's basically linked-up 
judges who have established a whole new Constitution on top of 
the national Constitutions. Only now are they getting around to 
saying, ``Oh, yeah, maybe we should have a treaty that we call 
a constitutional treaty which has a supremacy clause.''
    For 30 years--more than that now--40 years, you've had 
European courts saying, ``Oh, the European treaties are of 
higher authority even than our national constitution,'' and 
where did that come from? Not from the treaties. From judges 
saying, ``Oh, yeah, it's true,'' and then reassuring each other 
and encouraging each other to say that. That would be a big 
change for us.
    Now I want to come back to the security question, because 
you could say, ``Well, all these countries are interlinked and 
their judges are dialoguing and so it all goes together and 
isn't that swell and that's really progress. There's no 
European army.'' Why is there no European army? Well, because 
they don't actually trust each other enough to actually have an 
army together. There isn't even a European police force.
    Our Constitution started with this central issue: Are we 
going to have a national army and are we going to have the 
means to fund a national army; are we going to have a national 
executive? That's the difference between the Articles of 
Confederation and the Constitution, that the Constitution 
establishes an executive with force, and when we faced that at 
the beginning, we said, ``Okay, yes, we need this, but of 
course it's dangerous, so we need to have checks and balances 
and a constitutional structure.''
    What they have done in Europe, and that is really what's at 
stake here, is they have said we don't need to do that because 
that would frighten people. If you said, yes, a European army, 
yes, a strong European executive with its own police force, 
everybody would be rattled. So they say you don't need that; 
you can just sort of sidle around it and just have the judges 
networking with each other and then establish European law in 
that way, and so you don't really need a real constitution with 
checks or balances.
    People who think that way think there is no real conflict 
in the world. So everybody can agree, and it's convenient to 
think that there is no real conflict in the world because you 
never need force and you don't really need to defend yourself, 
because basically we all agree, and so our judges can dialog 
and work this thing out.
    One of the things that is crucially at stake here is not 
just some very abstract point about democracy or 
constitutionalism, but whether the United States can defend 
itself in its own institutions, and one of the things that is 
engaged by this trend, I believe, is our capacity to do it. One 
of the things that is going to start filtering in here--how do 
people feel about sodomy? I don't know. I don't think it's a 
burning issue. How do they feel about capital punishment maybe 
is a more intense issue, but down the road you're going to have 
questions about what can we do in our anti-terror efforts. I 
don't think we want to take construction from European judges 
who have a very different view of this, because their whole 
view of terror is it's something that happens to other people 
and keep it away from us.
    I think it's quite important to our security and to our 
sense of ourselves as a nation entitled to defend itself that 
we keep in focus here that our constitution is about defending 
ourselves and as an independent nation and the citizens of this 
nation, as citizens of a nation which is going to protect it, 
and that is really at stake here in the background too.
    Thank you.
    [The prepared statement of Professor Rabkin follows:]

                  Prepared Statement of Jeremy Rabkin

    Thank you for inviting me to take part in these hearings. I believe 
the proposed resolution is an appropriate response to a disturbing 
trend. I very much hope the committee and ultimately the whole House 
will give it their full consideration.
    Let me start by placing these recent Court rulings in larger 
context. To date, the U.S. Supreme Court has invoked the legal 
standards of foreign countries in only a handful of cases--that is, 
cases dealing with the U.S. Constitution. In all of these cases, 
references to foreign practice or foreign opinion might fairly be 
described as incidental to the Court's reasoning. So, it may seem that 
these references are nothing to get excited about.
    But if justices who favor citations to foreign claims are content 
to mention them in footnotes, other justices have taken the trouble to 
repudiate such references in the text of their opinions (as, for 
example, both Chief Justice Rehnquist and Justice Scalia did in 
Atkins). In all likelihood, the critics recognize that what seems a 
mere stylistic or ornamental element in recent opinions is not 
something that is occurring in isolation. In fact, the U.S. Supreme 
Court is flirting with a trend that has already been taken quite a bit 
further by other courts in other countries. Robert Bork, who surveys 
the trend in a recent book, calls it ``transnational constitutional 
common law.''
    The issue, therefore, is not whether any harm has been done by the 
handful of recent incidental citations by our Court. It is whether the 
American judiciary should join this larger trend. I think it is proper 
to express alarm at the first hint that the U.S. courts would join this 
trend. In what follows, I will lay out three main objections.
    First, reliance on foreign legal opinion will encourage judicial 
activism. One of the main reasons why judges cite precedents is to 
demonstrate that their decisions are not simply based on their own 
personal preferences but follow, in some way, from recognized legal 
standards. If foreign rulings are relevant guides to the law, then 
judges have a much larger range of precedents to choose from--or to 
hide behind.
    The point is well illustrated by the two recent cases in which the 
Supreme Court's majority did invoke foreign standards--Atkins v. 
Virginia and Lawrence v. Texas. In both of these cases, the Court was 
reversing decisions it had made only some fifteen years earlier.
    The Court was therefore at pains to explain why the Constitution 
had meant one thing in the 1980s and now should mean something else.
    Foreign opinion was invoked to give more respectability to the 
Court's change of heart--or rather, to the shifting balance of votes 
among the justices (divided now on the issues in these cases, as they 
were in the 1980s, but with a majority on the other side).
    If contrary foreign rulings provide justification for changing 
American law, then American judges may find many pretexts for 
abandoning existing precedents and launching in new directions. And the 
choice will almost always be up to the judges, since foreign courts and 
foreign standards reflect wide variation. The Court remains free to 
adopt European views on capital punishment for murderers of subnormal 
intelligence--as in Atkins. Evidently, it does not feel bound, however, 
to embrace the European view that the death penalty is always improper.
    Similarly, there is no indication that the Court is prepared to 
consider European stances on abortion, which are generally more 
restrictive than the standards which the U.S. Supreme Court has 
asserted. The Court seems to regard foreign precedents as something to 
invoke or ignore, at its own convenience. So instead of limiting the 
Court, the practice allows the Court to be more free-wheeling. That 
seems to me bad in itself for an institution whose authority depends on 
its claim to be discerning law and not merely imposing its own choices.
    Of course, there is often dispute about what the Constitution 
really does mean and how it should be interpreted. It may be that some 
past rulings of the Court should be reconsidered. But this brings me to 
my second point. Appeals to foreign practice tend to undermine the 
notion that we really do (or really should) have a distinct 
constitution in our own country. Appeals to foreign practice imply that 
the ultimate issue is simply what the wisest heads regard as the best 
solution. What we have actually agreed to accept in this country then 
begins to seem a matter of minor or merely transitory importance.
    I am not making a simple-minded appeal to democracy. Courts are not 
democratic institutions. And it is only in a very figurative sense that 
our Constitution can be described as ``the will of the people,'' since 
the people who actually ratified the Constitution, the Bill of Rights 
and the Fourteenth Amendment have long ago passed on to their rewards. 
Still, our federal judges are chosen by a political process--in recent 
years, a very partisan political process--which does answer to our own 
voters. We implicitly appeal to our citizens to put up with court 
rulings they find objectionable in the interest of maintaining a common 
constitutional framework. It is a big leap beyond this understanding to 
ask Americans to put up with a ruling because it is what foreigners 
happen to approve.
    I think such appeals are bound to undermine respect for law in this 
country. European courts cite each other. An entire structure of 
supranational law has been constructed on top of national constitutions 
in Europe--all by the aggressive application of treaties, which judges 
in national governments have embraced in part because it gives them 
more authority in facing their own national parliaments. It may be that 
Europeans are more comfortable deferring to the guidance of elites, 
including foreign elites. Apart from Britain, almost all European 
countries are governed by constitutions which were cobbled together 
after 1945 or after still more recent periods of dictatorship. Perhaps 
Europeans prefer foreign supervision to the tyrannies they fell prey to 
when they were sovereign. But it would be an enormous change for 
Americans to live by the promptings of foreign authorities. We are less 
likely to come away with the belief that we have acquired a better, 
more cosmopolitan constitution, than with the cynical suspicion that we 
have been left with no constitution at all.
    If all this seems rather abstract, let me conclude with a more 
immediate political point. Resort to foreign precedents may not be 
disciplined by any sort of clear theory or strict doctrine--as it 
surely is not now. But it is not likely to be random. Our judges will 
not invoke precedents from China or Russia or Saudi Arabia. What we are 
most likely to get is what we have recently gotten--appeals to the 
sensibilities of western European judges or officials. We share many 
notions with European legal systems and for just this reason, drawing 
instruction or inspiration from European courts may seem plausible.
    But we also have fundamental differences and some of our most 
fundamental differences center on the importance of self-defense. 
American courts have generally been very deferential to the President 
and Congress when it comes to basic questions about military 
operations. Our Supreme Court refused in 1980 to question the propriety 
of an all-male draft. The European Court of Justice directed the 
Federal Republic of Germany that limits on the participation of women 
in the German military were contrary to European norms. Our courts have 
been very reticent about challenging our military's restrictions on the 
participation of homosexuals. The European Court of Human Rights 
instructed Britain that it must admit homosexuals to its armed forces. 
Our courts have been broadly deferential to executive decisions 
regarding the entry into our country of non-citizens. European courts 
have insisted that claims about national security cannot excuse 
interference with the rights of would-be migrants or refugees. Our 
courts, in general, are far more respectful of legal claims that engage 
issues of national security. In Europe, judges seem to have far less 
patience with such claims. The European Court of Human Rights has 
repeatedly condemned British police practices aimed at suppressing 
terrorism in Northern Ireland.
    We already have major disputes with European states about the best 
way of coping with the menace of international terrorism. Perhaps we 
will find more common ground in the coming years. But the very worst 
way of seeking that common ground, I think, would be for judges--who 
have no direct responsibility for security and generally very little 
experience with security issues--to take up European notions from here 
and from there and grope toward their own vision of common standards.
    Should bin Laden or other organizers of the September 11 atrocities 
be subject to capital punishment? Should they be exposed to fatal 
attack by American military forces? European opinion holds against such 
responses. We cannot expect Europeans to participate in military 
operations of which they disapprove. We cannot expect them to adopt 
criminal justice measures of which they disapprove. But it may be quite 
important to the security of the United States in coming years that it 
retains the moral self-confidence to pursue its own, differing policies 
and priorities. The Supreme Court in Atkins seemed to acknowledge that 
European opinion had some claim to be considered in deciding whether 
American law could impose capital punishment. It is only a short step 
from Atkins to the notion that European opinion must be considered when 
our courts decide on the legality or constitutionality of American 
responses to the challenge of terrorism.
    I don't think the American people would accept a scheme in which 
responsibility for American security were shared with foreign judges or 
foreign officials--subject only to the shifting sympathies of American 
judges. I support H. Res. 568 as a means of emphasizing this point to 
the Supreme Court.

    Mr. Chabot. Thank you, Professor. I might note that this is 
the first time that, at least in this Committee, the term 
``surrender monkey'' has actually been used. It will be in the 
record. So at least there's been one first.
    Mr. Rabkin. It does capture something.
    Mr. Chabot. Yes, indeed.
    Professor Jackson.

 STATEMENT OF VICKI JACKSON, PROFESSOR OF LAW, GEORGETOWN LAW 
                     CENTER, WASHINGTON, DC

    Ms. Jackson. Thank you, Mr. Chairman.
    I want to make three points briefly to explain my 
opposition to the proposed resolution. First, the reliance on 
foreign or international law that we have seen in the recent 
cases is, in my view, consistent with our earliest legal 
traditions. Our Declaration of Independence was written, its 
drafters said, out of a decent respect to the opinions of 
mankind and, like many parts of the Federalist Papers, suggest 
that the views of the rest of the world should matter.
    Early 19th Century Supreme Court decisions made repeated 
use of the law of nations in deciding questions of U.S. law, 
including constitutional law. For example, Chief Justice John 
Marshall invoked the law of nations in Worcestor v. Georgia, 
which concerned the status of Indian tribes in our 
Constitutional order. Chief Justice Roger Tawney did so as well 
in Holmes v. Jennison. The case involved the question whether 
the State of Vermont had power to extradite a fugitive to 
Canada. These and other early comfortable references to the law 
of nations in resolving important legal questions suggest that 
contemporary uses of foreign or international law as non-
binding but relevant authority are well within our own 
interpretive traditions.
    This brings me to my second point, which is that recent 
cases, such as Lawrence, Atkins, or the opinion in Grutter, do 
not involve use of foreign or international law as binding 
authority, but as relevant or possibly persuasive authority 
insofar as it reflects information about how other systems have 
approached similar problems. Relevant non-binding foreign law 
and institutions has been referred to on many occasions in our 
court, both to shed light on how our constitution is 
distinctive from many others and also to show commonalities 
between our constitution and the legal commitments of other 
nations that may help us in determining how best to interpret 
our own laws.
    An example of the use of foreign legal matter as negative 
authority to show how we're distinctive is found in Justice 
Jackson's great opinion--he's no relation--Justice Jackson's 
great opinion in the Youngstown Steel case where he explored--
he had come back from Nuremberg where he was a prosecutor, and 
he explained in the opinion how the emergency powers provisions 
of the Weimar Constitution of Germany helped enable Hitler to 
come to power. This use of foreign authority as a negative 
example powerfully illuminated how our constitution should be 
interpreted in light of what it is and we stand for.
    In Miranda v. Arizona, the Court used foreign authority 
both to distinguish us and to shed light on common legal 
concerns. The Court described practices followed to protect 
against abusive custodial interrogations in Scotland, England, 
and India to explore the likely consequences to law enforcement 
of our adopting what we now know as the Miranda warnings. These 
other countries, the Court said, did not have the written 
protections of our fifth amendment, yet the Court saw their 
rules as efforts to protect similar interests and as shedding 
light on how our own written constitutional provision of the 
fifth amendment should be interpreted.
    Although claims that foreign or international law is 
binding authority in the U.S. may well raise important 
questions of democratic legitimacy, the thoughtful 
consideration of foreign precedents or legal institutions in a 
non-binding way can be a positive good in helping to assure us 
that our own constitutional decisions are thoughtfully 
considered and well informed. Lawrence's use of the European 
decisions was, in my judgment, appropriate not only to correct 
assertions that had been made in Bowers v. Hardwick, but also 
to understand how another respected court in the world had 
reasoned about a similar problem under similar though not 
identical legal commitments.
    Last, I want to urge great caution in any effort to direct 
Federal courts in how to engage in their interpretive activity. 
This is at the core of the judicial process. Part of the U.S. 
constitutional system of separation of powers is the 
institution of judicial review by independent courts of 
constitutional questions. Disagreement with their decisions is, 
on occasion, to be expected, though, thankfully under our rule 
of law system, disobedience is not. But to seek to interject 
that disagreement into the interpretive process by directing 
the Court what materials it may and may not look at or refer to 
risks the appearance of political interference with one of the 
signal and great contributions of the United States to 
constitutionalism here and abroad, and that is the independent 
judiciary as a bulwark for constitutional liberties, freedoms, 
and rules.
    Thank you.
    [The prepared statement of Professor Jackson follows:]

                 Prepared Statement of Vicki C. Jackson

    Thank you for the opportunity to provide a statement on proposed 
House Resolution 568. I want to make three points. First, the ``law of 
nations'' and the practices of other constitutional systems have been 
used since the Founding period to assist the Court in reaching 
appropriate interpretations of American law. Second, the Court's use of 
foreign law in Lawrence v. Texas, 123 S. Ct. 2472 (2003), was not to 
bind or control its judgments of constitutional questions under U.S. 
law but to assist the Court in making the best interpretations of our 
own law. Third, legislative directions to the courts on how to 
interpret the Constitution raise serious separation of powers questions 
and might be perceived to threaten judicial independence in ways 
inconsistent with important traditions of American constitutionalism. 
For these reasons I would urge the House not to adopt the proposed 
resolution.
    Far from being hostile to considering foreign countries' views or 
laws, the Founding generation of our Nation had what the signers of the 
Declaration of Independence described as a ``decent Respect to the 
Opinions of Mankind.'' Congress was empowered in our Constitution to 
regulate foreign commerce and to prescribe ``Offenses against the Law 
of Nations,'' the President authorized to receive ambassadors, and the 
federal courts given jurisdiction over cases arising under treaties as 
well as under the Constitution and laws of the United States, and over 
suits affecting ambassadors, or involving aliens or foreign countries 
as parties in some cases. The Federalist Papers explained that

        An attention to the judgment of other nations is important to 
        every government for two reasons: the one is, that, 
        independently of the merits of any particular plan or measure, 
        it is desirable . . . that it should appear to other nations as 
        the offspring of a wise and honorable policy; the second is, 
        that in doubtful cases, particularly where the national 
        councils may be warped by some strong passion or momentary 
        interest, the presumed or known opinion of the impartial world 
        may be the best guide that can be followed.

The Federalist No. 63 (Hamilton or Madison). Although Federalist No. 63 
was not directed to the courts, Federalist No. 80 (Hamilton) explained 
the need for a judicial power broad enough to resolve disputes in which 
foreign nations had an interest in order to avoid causes for war.
    U.S. Supreme Court Justices from the founding period recognized the 
relevance of the ``law of nations'' in interpreting U.S. law and 
resolving disputes before the federal courts. As Justice Story said, in 
writing the foundational Supreme Court decision in Martin v.  Hunter's 
Lessee, the judicial power of the United States included categories of 
jurisdiction, such as admiralty, ``in the correct adjudication of which 
foreign nations are deeply interested . . . [and in] which the 
principles of the law and comity of nations often form an essential 
inquiry.'' Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 335 
(1816). The Justices have used understandings of the law and practice 
of other nations on a number of occasions to assist in reaching correct 
interpretations of the U.S. Constitution. Thus, for example, in 
Worcestor v.  Georgia, 31 U.S. 515, 560-61 (1832), the Court, in an 
opinion by Chief Justice John Marshall, considered the law of nations 
as helpful in defining the status of Indian tribes under the U.S. 
Constitution, concluding that they retained rights of self-government 
with which the states could not interfere. In Holmes v.  Jennison, 39 
U.S. 540, 569-73 (1840), Chief Justice Taney's opinion relied on the 
practices of other nations to help interpret the Constitution as 
precluding a state governor from extraditing a fugitive to Canada.\1\
---------------------------------------------------------------------------
    \1\ Although there was no opinion of the divided Court and the writ 
of error was dismissed for want of jurisdiction, Justices Story, McLean 
and Wayne concurred ``entirely'' with the Chief Justice's opinion. 39 
U.S. at 561. The Reporter's Note at the end of the case indicates that 
after the case was disposed of in the Supreme Court, the Vermont state 
court concluded that, ``by a majority of the Court it was held that the 
power claimed to deliver up George Holmes did not exist'' and 
discharged him. 39 U.S. at 598.
---------------------------------------------------------------------------
    In other cases, as well, the early Court took cognizance of the 
``law of nations'' or other countries' practices in resolving 
particular controversies: In The Schooner Exchange v.  McFaddon, 11 
U.S. 116, 137-46 (1812), the Court relied on ``the usages and received 
obligations of the civilized world'' to hold a foreign sovereign's 
vessel in a U.S. port to be immune from judicial jurisdiction. In 
Murray v.  Schooner Charming Betsy, 6 U.S. 64, 118 (1804), Chief 
Justice Marshall wrote that ``an act of Congress ought never to be 
construed to violate the law of nations if any other possible 
construction'' exists. And in determining what the law of nations was, 
in 1815 the Court commented that ``[t]he decisions of the Courts of 
every country, so far as they are founded upon a law common to every 
country, will be received, not as authority, but with respect.'' Thirty 
Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815).
    This brings me to my second point. The Court's recent references to 
foreign law and legal practice seems to me entirely consistent with the 
founding generation's respectful interest in other countries' opinions 
and legal rules. Lawrence did not treat foreign court decisions as 
binding authority, which is an important distinction. Rather, the 
foreign decisions were cited in Lawrence for two purposes: The first 
was to correct or clarify the historical record referred to in Chief 
Justice Burger's opinion in Bowers v.  Hardwick, 478 U.S. 186 (1986), a 
decision reversed by Lawrence. As the Lawrence Court wrote, ``The 
sweeping references by Chief Justice Burger to the history of Western 
civilization and to Judeo-Christian moral and ethical standards did not 
take account of other authorities pointing in an opposite direction,'' 
including the Dudgeon case decided by the European Court of Human 
Rights in 1981. Second, the Lawrence opinion suggested, the European 
decisions invalidating laws prohibiting adult, consensual homosexual 
conduct raised the question whether there were different governmental 
interests in the United States that would support such a prohibition on 
human freedom, and concluded there were not. See 123 S. Ct. at 2483. 
This use of foreign law to interrogate and question our own 
understandings is something that will help improve the process of 
judicial reasoning, but certainly does not necessarily lead to the 
conclusion that our law should follow that foreign law.
    Indeed, on a number of occasions our Court has referred to foreign 
practice to distinguish our own Constitution from that of other 
nations. In the great Youngstown Steel Case, the Court held that 
President Truman lacked constitutional power to order seizure of the 
steel companies. Justices Frankfurter and Jackson alluded to the 
dangers of dictatorship that other countries had recently experienced, 
Justice Jackson explaining in some detail features of the Weimar 
Constitution in Germany that allowed Hitler to assume dictatorial 
powers. See Youngstown Sheet & Tube Co v.  Sawyer, 343 U.S. 579, 593 
(1952) (Frankfurter, J.) (``absurd to see a dictator'' in President 
Truman but ``accretion of dangerous power does not come in a day''); 
id. at 651-52 (Jackson, J.) (discussing German, French and British 
approaches to emergency powers). And in Miranda v.  Arizona, 384 U.S. 
436, 489-90 (1966) the Court suggested that our Fifth Amendment should 
be interpreted to provide at least as much protection to rights against 
improper custodial interrogations as did certain other countries.\2\
---------------------------------------------------------------------------
    \2\ After describing the protections of, inter alia, England, 
Scotland and India, against improper custodial confessions, 384 U.S. at 
486-89, the Court indicated that our own situation was similar enough 
that their positive experience gave ``assurance that lawlessness will 
not result from warning an individual of his rights or allowing him to 
exercise them.'' Id. at 489. It went on to say: ``It is consistent with 
our legal system that we give at least as much protection to these 
rights as is given in the jurisdictions described. We deal in our 
country with rights grounded in a specific requirement of the Fifth 
Amendment of the Constitution, whereas other jurisdictions arrived at 
their conclusions on the basis of principles of justice not so 
specifically defined.'' Id. at 489-90.
---------------------------------------------------------------------------
    Considering other courts' decisions on shared concepts--of liberty, 
equality, freedom of expression, cruel and unusual punishment--can help 
clarify what the U.S. Constitution stands for--to what extent its 
precepts are shared, and to what extent they are distinctive. The U.S. 
constitution has, directly or indirectly, inspired many other nations 
to include commitments to liberty, freedom and equality in their own 
constitutions. It is thus understandable that such nations may look to 
our courts' decisions and over time expect our courts to be aware of 
their courts' interpretations of legal concepts having a common source 
of inspiration. For the many nations around the world whose own 
constitutions have been inspired in part by that of the United States, 
and whose judges believe that we share commitments to ideas of liberty, 
freedom and equality, the U.S. Court's occasional consideration of 
foreign court decisions is, in a sense, a recognition of common 
judicial commitments--often inspired by the example of the United 
States--to the protection of individual rights. And on the current 
Court, Chief Justice Rehnquist,\3\ as well as Justices Breyer,\4\ 
Ginsburg,\5\ Kennedy,\6\ Scalia \7\ and Stevens,\8\ have referred to or 
noted foreign or international legal sources in their opinions in U.S. 
constitutional cases. It is thus not only a traditional legal practice 
but one that has been used by justices who otherwise have very 
different views.
---------------------------------------------------------------------------
    \3\ See Planned Parenthood v. Casey, 505 US 833, 945 n. 1 (1992) 
(Rehnquist, C.J. dissenting) (describing German and Canadian 
constitutional cases on abortion). But cf. Atkins v. Virginia, 536 U.S. 
304, 324-35 (2002) (Rehnquist, C.J., dissenting).
    \4\ See, e.g., Foster v. Florida, 537 U.S. 990, 991-93 (2002) 
(Breyer, J., dissenting from denial of certiorari).
    \5\ See Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003) 
(Ginsburg, J., concurring) (referring to international covenants that 
provide for temporary measures of affirmative action).
    \6\ See Lawrence, 123 S. Ct. at 2481, 2483 (discussing European 
Court of Human Rights cases invalidating laws prohibiting adult 
homosexual conduct).
    \7\ See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 381-82 
(1995) (Scalia, J., dissenting) (referring to Australia, Britain and 
Canadian prohibitions on anonymous campaigning as bearing on whether 
such a prohibition protects or enhances democratic elections). But cf. 
Printz v.  United States, 521 U.S. 898, 921 n. 11 (1997) (Scalia, J.)
    \8\ See Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002) 
(referring to views of the ``world community'' on imposition of the 
death penalty on the mentally retarded as reflected in an amicus brief 
of the European Union).
---------------------------------------------------------------------------
    Finally, the questions of what sources are to be considered in 
giving meaning to the Constitution in adjudication is one that is, in 
my view, committed by the Constitution to the judicial department. 
Marbury v.  Madison famously explained: ``It is emphatically the 
province and duty of the judicial department to say what the law is.'' 
5 U.S. 137, 177 (1803). A core aspect of determining what the law of 
the Constitution is requires consultation of relevant and illuminating 
materials--from the enactment and ratification history, from 
interpretations by state and federal courts of the provision or of 
analogous state constitutional provisions, from the course of decisions 
by legislatures and executive officials about what action is required 
or permitted, and from the considered judgments of other courts and 
commentators on the same or analogous questions. All of these kinds of 
sources have been and may be considered when the justices conclude that 
they shed legal light on the problem before them.
    Efforts by the political branches to prescribe what precedents and 
authorities can and cannot be considered by the Court in interpreting 
the Constitution in cases properly before it would be inconsistent with 
our separation of powers system. It could be seen both here and 
elsewhere as an attack on the independence of the courts in performing 
their core adjudicatory activities. Around the world, the most widely 
emulated institution established by the U.S. Constitution has been the 
provision for independent courts to engage in judicial review of the 
constitutionality of the acts of other branches and levels of 
government. Congress should be loath even to attempt to intrude on this 
judicial function, with respect to a practice that dates back to the 
founding, and at a time when the United States is deeply engaged in 
promoting democratic constitutionalism in countries around the world, 
including provision for independent courts to provide enforcement of 
constitutional guarantees.

    Mr. Chabot. Thank you, Professor.
    Professor Ramsey.

STATEMENT OF MICHAEL D. RAMSEY, PROFESSOR OF LAW, UNIVERSITY OF 
              SAN DIEGO LAW SCHOOL, SAN DIEGO, CA

    Mr. Ramsey. Mr. Chairman and Members of the Committee, 
thank you for the opportunity to express my views on the 
matter. In my written statement, I've explained in detail why I 
think H. Res. 568 is an appropriate response to some Supreme 
Court decisions and academic commentary, and I will make a 
brief summary here.
    No one seriously disputes that reference to foreign 
materials is entirely appropriate under certain circumstances. 
When foreign courts have previously interpreted the same legal 
texts that a U.S. court is considering, of course it is 
informative, though not dispositive to see what other courts 
have said on the matter. For example, Justice Scalia recently 
argued that the Supreme Court in interpreting a provision of 
the Warsaw Convention on air carrier liability should consider 
what foreign courts have said about that same provision of the 
Warsaw Convention. Further, foreign materials are, of course, 
important in understanding the content of customary 
international law when U.S. courts are called upon to apply it 
and may provide background to understand the context in which 
U.S. laws were enacted.
    The new use of foreign materials being proposed, and to 
some extent adopted by the Supreme Court in a few recent 
decisions, however, is entirely different. For example, in 
Lawrence v. Texas, the recent case striking down Texas' anti-
sodomy law, the Court relied in part on Dudgeon v. United 
Kingdom and related cases of the European Court of Human 
Rights, but these two courts were interpreting entirely 
distinct legal texts. The Supreme Court was interpreting the 
due process clause of the 14th amendment adopted in 1868 in the 
United States. The European court was interpreting the European 
Convention for the protection of human rights and fundamental 
freedoms, a treaty among European countries adopted in 1953.
    More over, as the Court in Dudgeon made clear, the language 
in the two documents and the interpretation the courts have 
placed upon that language is totally different. Under the due 
process clause, according to the Court's prior precedent, the 
question was whether anti-sodomy laws had a rational basis, 
essentially whether they're a reasonable exercise of the 
state's police power. Under the European Convention, the 
question is whether anti-sodomy laws were ``necessary to 
protect public health and morals,'' which the European court 
explicitly said meant ``a pressing social need'' and not merely 
``reasonable.''
    In sum, what the European court said about the text of the 
European Convention was not informative about the meaning of 
the text of the 14th amendment because those are two totally 
different legal texts.
    As Dungeon and Lawrence illustrate, and contrary to the 
statements of at least one Supreme Court justice, Justice 
Breyer, there is no ``global legal enterprise in constitutional 
law.'' That's because there is no single global constitution 
which the world's courts are collectively engaged in 
interpreting as they are, in contrast, to the case of the 
Warsaw Convention. There are only a series of distinct legal 
texts with different language adopted in different places, 
times, and contexts. Sometimes these may have some relationship 
to one another, but often they do not.
    When U.S. courts look to foreign materials in the way the 
Supreme Court did in Lawrence, they are not using foreign 
materials to aid in the interpretation of a specific legal 
text, but instead are looking to foreign statements of moral 
and social policy to inform their own thinking about moral and 
social policy. Further, no one is seriously proposing that U.S. 
courts should in all cases or even in difficult cases adopt the 
moral and social policy of foreign jurisdictions, nor that U.S. 
courts should consider the moral and social policy of all 
foreign jurisdictions.
    Such an approach would require enormous cutbacks in the 
constitutional rights of Americans, because the U.S. recognizes 
many rights that are rarely recognized abroad. For example, 
most European countries in the European court allow much 
greater restrictions on free speech. They allow much greater 
government support for religion than permitted by our 
establishment clause. They allow more interference with 
religious practice than does our free exercise clause. They 
have fewer rights to bear arms and to own property. They lack 
many of our criminal procedure protections, such as the 
exclusionary rule. They lack many of our protections for 
abortion rights.
    Advocates of the Lawrence approach do not want foreign 
practices to force them to give up the rights that they favor. 
As a result, the Lawrence approach is inherently selective. 
Indeed, in Lawrence itself, the Court looked at some 
jurisdictions which had repealed or overturned anti-sodomy laws 
while ignoring many jurisdictions that retain anti-sodomy laws. 
Just a few years earlier, in Stenberg v. Carhart, the Court 
overturned a Federal ban on late-term abortions under the same 
provision of the U.S. Constitution that was at issue in 
Lawrence without considering the likelihood that many foreign 
jurisdictions, including in Europe, also ban late-term 
abortions.
    It seems clear that the justices and the academic 
commentators who support them want to use foreign materials not 
on the basis of any principle appropriate, but merely when they 
happen to coincide with the justice's own moral and social 
preferences.
    Finally, I agree that it is appropriate that we in the 
United States consider the differing approaches of foreign 
jurisdictions in formulating moral and social policy, just as 
States within the United States look to experiences and 
practices of other States in formulating their laws; however, 
this is a job for Congress and the State legislatures, not for 
the courts. The role of the courts is to determine the meaning 
of legal texts enacted by the people and their representatives. 
That is done by looking at the intended meaning of the text and 
perhaps by the evolving moral and social values of American 
society.
    The decision whether to change American values, whether by 
reference to foreign values or the internal values of a 
lawmaker, is one for legislatures and for the people and not 
for the courts. It is inconsistent with the rule of law for 
U.S. courts to pick and choose among the moral and social 
policies of selectively determined foreign jurisdictions to 
justify imposing moral and social values upon the American 
people that are not reflected in U.S. law.
    Thank you.
    [The prepared statement of Professor Ramsey follows:]

                Prepared Statement of Michael D. Ramsey

    I thank the Committee for the opportunity to express my views on 
the proper use of foreign materials by U.S. courts.\1\ My opinion is, 
in sum, as follows. Foreign materials are relevant to the 
interpretation of U.S. law in numerous circumstances, most notably 
where foreign courts have interpreted the same or parallel legal texts 
as those under consideration by the U.S. court. However, some recent 
Supreme Court decisions--and, even more so, some recent claims by 
attorneys, law professors and individual Justices--have gone too far in 
giving weight to foreign materials as, in effect, persuasive statements 
of social policy. This is problematic in several respects. 
Consideration of the views and experiences of foreign jurisdictions is 
surely appropriate in the formulation of moral and social policy, but 
it is properly a function of Congress and state legislatures, not the 
courts. If U.S. courts adopt a principled rule that they will be guided 
by the moral and social policy of foreign jurisdictions across the 
board, the result is likely to be a substantial reduction of rights in 
the United States, since in many respects the United States protects 
rights than are rarely recognized elsewhere. If U.S. courts instead 
cite foreign materials selectively, to implement only moral and social 
policy choices with which they agree, it will become obvious that these 
citations are not being used to elucidate interpretations of legal 
texts, but rather as cover for the Justices to implement their own 
policy preferences. This is not consistent with the rule of law or the 
proper role of the judiciary.
---------------------------------------------------------------------------
    \1\ Parts of this statement are based on a forthcoming article in 
the American Journal of International Law. Michael D. Ramsey, 
International Materials and Domestic Rights: Reflections on Atkins and 
Lawrence, __Amer. J. Int'l L.__ (forthcoming 2004).
---------------------------------------------------------------------------
                           GENERAL PRINCIPLES

    I begin with a few examples of the appropriate use of foreign 
sources. First, U.S. courts may be called upon to interpret the same 
language that foreign courts have previously interpreted. While a 
foreign court's view of that language is obviously not binding, it may 
be persuasive, or at least informative, on the question of what the 
language means. This is most common in the case of treaties. For 
example, in a recent case the Supreme Court was called upon the 
interpret the meaning of the word ``accident'' in the Warsaw Convention 
on air carrier liability.\2\ As Justice Scalia argued (in dissent), it 
would be appropriate to consider what foreign courts had decided when 
faced with the question of the meaning of the word ``accident'' in the 
Warsaw Convention.\3\
---------------------------------------------------------------------------
    \2\ Olympic Airways v. Husain, No. 02-1348, Feb. 24, 2004.
    \3\ ``We can, and should, look to decisions of other signatories 
when we interpret treaty provisions. Foreign constructions are evidence 
of the original shared understanding of the contracting parties. 
Moreover, it is reasonable to impute to the parties an intent that 
their respective courts strive to interpret the treaty consistently. . 
. . Finally, even if we disagree, we surely owe the conclusions reached 
by appellate courts of other signatories the courtesy of respectful 
consideration.'' Id., slip op. at 4 (Scalia, J., dissenting).
---------------------------------------------------------------------------
    Second, a U.S. statute or constitutional provision may be derived 
from a prior law or constitutional provision of a foreign nation, or 
adopted in an international context that is relevant to its meaning. In 
that instance, it is important to understand the meaning of the 
provision upon which the U.S. language is based or the context in which 
it was adopted--and that may be done by considering foreign materials. 
For example, many provisions of the U.S. Bill of Rights are based upon 
parallel provisions in the English Bill of Rights of 1688 or other 
provisions of pre-existing English law,\4\ so citations to English 
decisions interpreting those provisions are surely appropriate.\5\
---------------------------------------------------------------------------
    \4\ Foreign courts sometimes cite U.S. decisions for this reason: 
some foreign constitutions used the U.S. Constitution as a model.
    \5\ See Harmelin v. Michigan, 495 U.S. 956 (1990) (using English 
decisions and practice to understand context of the Eighth Amendment).
---------------------------------------------------------------------------
    Third, U.S. statutes are sometimes intended as implementations of 
international law (as is the case, for example, of many provisions of 
the Foreign Sovereign Immunities Act), and the U.S. Constitution has 
several provisions that refer to international law itself or to 
international law concepts such as treaties and warmaking. In such 
cases, a U.S. court should investigate the international law that the 
U.S. law was intended to implement, an inquiry that could be assisted 
by looking at what foreign institutions had said about the relevant 
provisions of international law.\6\ Similarly, U.S. courts are 
sometimes called upon to implement international law directly (as in 
the interpretive canon that ambiguous statutes are construed not to 
violate international law). Again, in determining the content of 
international law, U.S. courts might appropriately look to decisions of 
foreign institutions.
---------------------------------------------------------------------------
    \6\ For example, I have argued that in determining the meaning of 
the Constitution's declare war clause, it is important to understand 
the international law meaning of ``declaring'' war in the eighteenth 
century. Michael D. Ramsey, Textualism and War Powers, 69 U. Chicago L. 
Rev. 1543 (2002).
---------------------------------------------------------------------------
    These examples are an illustrative not exhaustive list. There are 
likely many other situations in which reference to foreign materials by 
U.S. courts would be natural and non-controversial. They share a common 
attribute: each involves a situation in which the U.S. court is asking 
the same question about the same legal text or concept as foreign 
courts or other institutions have previously asked.
    A second category of references to foreign materials is more 
controversial, but, in my view, usually appropriate if done cautiously. 
These references arise when the constitutionality of a U.S. law can be 
informed by facts existing in a foreign country. For example, the 
Supreme Court has interpreted the First Amendment's protection of free 
speech to require, in general, that content-based restrictions of 
speech must be necessary to serve a compelling government interest (or 
some similar language).\7\ The government might thus assert that a 
challenged regulation is ``necessary'' to prevent some great harm; but 
if other countries do not have the regulation and yet suffer no great 
harm, that might be evidence that the regulation is not necessary (and 
hence is unconstitutional). Similarly, under the Due Process Clause, 
the Supreme Court has said that laws not implicating fundamental rights 
need only have a ``rational basis'' to be constitutional. Events and 
experiences in foreign countries might suggest that concerns advanced 
by the government in support of a law are in fact rational, because 
they have actually arisen in foreign countries. Thus, in Washington v. 
Glucksberg the U.S. Supreme Court looked at practice in the 
Netherlands, which has experience with legalized euthanasia, in 
deciding that the state's concerns about permitting euthanasia were at 
least rational.\8\
---------------------------------------------------------------------------
    \7\ New York Times v. United States, 403 U.S. 713 (1971).
    \8\ Washington v. Glucksberg, 521 U.S. 702, 721-724 (1997).
---------------------------------------------------------------------------
    This sort of reliance on foreign experiences has dangers, because 
it may be difficult to translate foreign experiences into U.S. 
contexts. A rule, or absence of a rule, that has one effect in a 
foreign country may, because of differing cultures, have a very 
different effect in the United States. Nonetheless, treated with 
appropriate caution, foreign experiences may be relevant as factual 
data points, where courts are called upon to evaluate the likely 
practical effects of a law or action. As Professor Gerald Neuman has 
said, they are preferable to mere ``armchair speculation'' about 
possible effects.\9\
---------------------------------------------------------------------------
    \9\ Gerald Neuman, The Uses of International Law in Constitutional 
Adjudication, __Am. J. Int'l. L.__ (forthcoming 2004).
---------------------------------------------------------------------------
    A third, and somewhat more problematic category, arises if a U.S. 
court decides that the existence or non-existence of a right or duty in 
U.S. law depends upon how widely that right or duty exists in foreign 
nations. U.S. law might explicitly make its scope dependant upon the 
existence of a parallel rights or duties in foreign countries (as, for 
example, in reciprocal trade statutes or reciprocal inheritance laws). 
It is also possible that the drafters of a U.S. provision might 
implicitly intend that the scope of that provision should depend upon 
whether similar rules exist elsewhere. For example, Justice Scalia and 
others have argued, in the context of constitutional provisions turning 
upon the existence of ``fundamental rights,'' that a right fully 
embedded in the history and traditions of the United States might still 
not be ``fundamental'' in the constitutional sense if it is not widely 
recognized abroad.\10\ I am not sure this is often an appropriate 
methodology, because it usually does not rest on any close connection 
to the intended meaning of the statute or constitutional provision at 
issue, and I am skeptical that there are many provisions in U.S. law 
whose drafters intended that they depend on the scope of rights 
elsewhere. To be sure, if a U.S. law or constitutional provision 
directs (explicitly or implicitly) that its scope depends upon the 
existence or non-existence of parallel rights elsewhere, then it is 
appropriate to use foreign materials to assist in the implementation of 
the U.S. provision, but such intent would need to be determined on a 
provision-by-provision basis.
---------------------------------------------------------------------------
    \10\ Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, 
J., dissenting);Palko v. Connecticut, 302 U.S. 319 (1937); Hurtado v. 
California, 110 U.S. 516 (1884).
---------------------------------------------------------------------------
    Although the second and third categories I have described above 
seem somewhat more problematic than the first, each of them shares the 
common attribute that foreign materials are used to effectuate the 
original meaning of the U.S. provision in question. A distinct 
category--and to my mind an illegitimate one--is when the U.S. law in 
question does not direct the U.S. court to consider foreign judgments, 
but the court does so anyway, in the service of an ``evolving'' or 
``living'' interpretation of the law.
    I do not propose here to enter into the debate over whether 
interpretation should always be limited to an inquiry into the original 
meaning of a text, or whether meanings may sometimes ``evolve'' with 
our changing society. Even if the latter is true in some instances, it 
seems problematic to make that evolution turn upon the morals and 
values of other societies. Presumably, we decide to adopt a view of a 
U.S. law different from its original meaning because we feel that 
changes in our own society make the original rule no longer 
appropriate. It would seem odd, therefore, to say that, although 
American society has not changed in a way that would require an 
evolving interpretation of a U.S. law, that foreign societies have done 
so.\11\ To return to the First Amendment context, we may feel confident 
that strong protections of anti-government speech are contained in the 
intent of the Amendment itself, and that U.S. society has not evolved 
in a way to bring them into question; yet we might also note that many 
countries around the world have more restrictive limits on anti-
government speech.\12\ It is hard to see how the latter evidence would 
justify a departure from an interpretation of the First Amendment that 
is consistent with both its original meaning and with modern American 
values. Nonetheless, this is what some recent Supreme Court cases, and 
some academic commentary, seem to be suggesting.
---------------------------------------------------------------------------
    \11\ For the foreign materials to have any relevance to the 
decision beyond mere window-dressing, we must posit a situation in 
which the court's evaluation of the values of American society (however 
those may be determined) lead to a different result from its evaluation 
of foreign materials. Otherwise, the foreign materials are not truly a 
factor in the decision.
    \12\ For key European decisions on free speech that may be less 
protective than U.S. law, see, e.g., Zana v. Turkey, 27 E.H.R.R. 667 
(1997); Observer and Guardian v. United Kingdom, 14 E.H.R.R. 153 
(1991); Barfod v. Denmark, 13 E.H.R.R. 493 (1998).
---------------------------------------------------------------------------
              SPECIFIC EXAMPLES OF SUPREME COURT PRACTICE

    I now turn to specific evaluations of two recent Supreme Court 
cases that have excited much attention for their use of foreign 
materials: Atkins v. Virginia, concerning the constitutionality of 
executing mentally handicapped defendants, and Lawrence v. Texas, 
concerning the constitutionality of criminalizing homosexual 
sodomy.\13\ In each case the Court found the challenged law 
unconstitutional, and relied in part upon evidence of foreign 
practices. In each case several Justices registered strong objections 
to the use of such materials. And in each case some of the briefs made 
extensive use of foreign materials, urging an even greater reliance 
upon them.\14\
---------------------------------------------------------------------------
    \13\ Atkins v. Virginia, 536 U.S. 304 (2002); Lawrence v. Texas, 
No. 02-102 (June 26, 2003).
    \14\ To be clear, in the subsequent discussion I am not taking any 
position on the correct outcome of either case--only upon the type of 
evidence that should and should not have influenced the outcome.
---------------------------------------------------------------------------
    In Atkins, the Court relied in part upon the opinion of the ``world 
community'' that mentally handicapped defendants should be exempt from 
the death penalty, in deciding that executing the mentally handicapped 
violated the Eighth Amendment's ban on ``cruel and unusual 
punishment.'' \15\ As I have described elsewhere, there are serious 
methodological problems with how the Court determined the ``opinion of 
the world community''--including the fact that the court did not cite 
any foreign judgments, but only the amicus briefs of one of the 
parties, which were in turn either misleading or inaccurate in 
important respects.\16\ But leaving this aside, the relevant question 
here is, assuming that in general most nations do not execute the 
mentally handicapped, whether that should be relevant to the meaning of 
the Eighth Amendment.
---------------------------------------------------------------------------
    \15\ Atkins, 536 U.S. at 316 n. 21 (``Moreover, within the world 
community, the imposition of the death penalty for crimes committed by 
mentally retarded offenders is overwhelmingly disapproved.'').
    \16\ Michael D. Ramsey, International Materials and Domestic 
Rights: Reflections on Atkins and Lawrence, __Amer. J. Int'l L.__ 
(forthcoming 2004).
---------------------------------------------------------------------------
    The Court made no attempt to show why foreign practice should be 
relevant (the citation was in an footnote, made almost as an aside). 
There is no legal text parallel to the Eighth Amendment that has been 
interpreted in a foreign country in any way that is helpful to 
discerning the original meaning of the Eighth Amendment. Even if most 
foreign countries disapprove such executions, they do not do so as a 
result of an interpretation of the language of the Eighth Amendment, or 
anything upon which the Eighth Amendment was based. The Court's 
interpretation of the Eighth Amendment in Atkins did not turn on facts 
or predictions about effects that could be influenced by practice in 
foreign countries.\17\ And third, the Court did not show that the 
Eighth Amendment itself, in its original understanding, depended upon 
the scope of punishments in foreign countries.
---------------------------------------------------------------------------
    \17\ Justice Scalia in dissent suggested that a categorical rule 
against executing the mentally handicapped was a bad one because of the 
dangers of undetectable faking. Assuming that this should be relevant 
to the outcome, this is something that could be tested empirically by 
examining the experiences of jurisdictions that have a categorical 
rule.
---------------------------------------------------------------------------
    On the third point, it is of course possible that the drafters of 
the Eighth Amendment intended that its scope be affected by the 
severity of punishments in foreign countries, but I think that 
unlikely. For example, suppose a certain punishment was thought 
repugnant by Americans at the time the Amendment was adopted, and 
continues to be thought repugnant by most Americans today, but the 
punishment has been widely adopted throughout the world. Would that 
justify allowing the punishment in the few American jurisdictions that 
sought to adopt it? I think not, because the founding generation in 
America in many cases (including, I would say, in the Eighth Amendment) 
defined their values in opposition to what was practiced in much of the 
world. Most jurisdictions in the Framers' day did not protect their 
citizens from brutal punishments; the point of the Eighth Amendment was 
to establish a uniquely American standard. But if the practices of the 
world do not permit us to diminish the protections of the Eighth 
Amendment, they also should not permit us to enlarge its protections. 
In any event, there is no evidence that the Framers expected or 
condoned such an approach.
    Instead, what the Court seemed to be saying in Atkins is that other 
jurisdictions' decisions not to execute the mentally handicapped 
(whether for moral, constitutional, practical or other reasons) should 
influence our decision whether to permit such executions in the United 
States. As a matter of social policy, I agree with that proposition: we 
should surely consider (though not feel bound by) other nations' 
approaches to similar social problems (just as, in our federal system, 
individual states should consider, though not feel bound by, approaches 
to similar social problems by other states). Thus the Congress, and 
individual state legislatures should consider foreign practices in 
deciding whether there should be a categorical rule against executing 
the mentally handicapped.
    However, it is not the role of the Supreme Court to set U.S. social 
policy, with respect to executions or otherwise: the Court's role, in 
the Atkins case, was to interpret the Eighth Amendment. That means that 
the Court should base its decision upon the original meaning of the 
Eighth Amendment, or (perhaps) upon an evolving meaning that resonates 
with modern American values. In any event, its decision should turn 
upon the interpretation of the legal text. Congress, and the state 
legislatures, are the appropriate bodies to determine social policy 
(and thus to consider the relevance of social policies of foreign 
jurisdictions).
    The Court's decision in Lawrence shows some similar problems. The 
issue there was whether a state law criminalizing homosexual sodomy 
violated the Due Process Clause of the Fourteenth Amendment. According 
to prior precedent, the question should have been decided by asking (a) 
whether homosexual sodomy was a fundamental right, and (b) if not, 
whether the state had a rational basis in banning it.\18\ Since the 
Court did not appear to find a fundamental right, the rationality of 
the state law was the central constitutional question. That issue had 
already been decided by the Court in its prior decision in Bowers v. 
Hardwick,\19\ but the Court in Lawrence decided that Bowers should be 
overruled on this point.
---------------------------------------------------------------------------
    \18\ Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
    \19\ 478 U.S. 186 (1986).
---------------------------------------------------------------------------
    In addressing this question, the Court discussed several decisions 
of the European Court of Human Rights (ECHR), and referred to an amicus 
brief that described the law in some foreign countries.\20\ There are 
two ways to view this approach, one of which is much more limited and 
defensible than the other. First, the state in Lawrence (and to some 
extent the Court's prior discussion in Bowers) relied in part upon a 
claim that bans on homosexual sodomy were pervasive in Western 
civilization. To the extent that such a claim is relevant, it seems 
appropriate to look at foreign jurisdictions to show that this claim is 
not true. That is, the actual practice of foreign nations can be used 
to refute arguments based upon unfounded claims about supposed foreign 
practice. Though this defensive use of foreign materials by the Court 
does not seem too objectionable, I would prefer if the Court had simply 
rejected the state's claims as irrelevant. The fact (if it is a fact) 
that many nations currently ban homosexual sodomy does not show that 
such bans are rational, or otherwise inform the original meaning or 
modern meaning of the U.S. Due Process Clause.
---------------------------------------------------------------------------
    \20\ ``[I]t should be noted that the reasoning and holding of 
Bowers have been rejected elsewhere [citing three decisions of the 
ECHR]. Other nations, too, have taken action consistent with an 
affirmation of the protected right of homosexual adults to engage in 
intimate, consensual conduct. [citing an amicus brief]. The right 
petitioners seek in this case has been accepted as an integral part of 
human freedom in many other countries.'' Lawrence, slip op. at 16.
---------------------------------------------------------------------------
    Another way of looking at Lawrence, however, is that the Court used 
foreign practice as an affirmative argument in favor of striking down 
the statute. That is, it thought that because other jurisdictions had 
de-criminalized homosexual sodomy, the U.S. should do so as well. This 
resembles the Court's claim in Atkins, and is similarly problematic 
because it is a statement of social policy rather than an 
interpretation of a legal text.
    The Court's citation of the ECHR (and especially its claim that the 
ECHR had ``rejected'' the ``reasoning and holding in Bowers'') suggests 
that constitutional courts are all engaged in a common interpretive 
enterprise (as in fact they are when they are interpreting a common 
legal text such as the Warsaw Convention). But as a matter of legal 
interpretation, there is no direct connection between the U.S. 
Constitution and foreign court opinions that address the interpretation 
of different documents written in different times and different 
countries. The mandate of the ECHR, for example, is to interpret the 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms, a treaty among European nations drafted in the 1950s. Under 
the Convention, the question is whether sodomy laws violate the right 
(in Article 8(1)) to ``privacy and family life'' and are not justified 
under Article 8(2) (restrictions that are ``necessary'' to protect 
listed social values). Under the U.S. Constitution, as discussed, the 
question is whether the right is ``fundamental'' and, if not, whether 
the law is rationally related to a legitimate governments interest. 
Thus in confronting sodomy laws the ECHR and the U.S. Supreme Court 
faced entirely distinct texts, with a distinct body of precedent 
elaborating upon the meaning of key phrases. It is too simplistic to 
say that both are doing constitutional law, and so doing the same 
thing. Rather, they are both interpreting texts, but the texts they are 
interpreting are distinct.
    Dudgeon v. United Kingdom, the leading European case cited in 
Lawrence, confirms this point. According to Dudgeon, the principal 
question it faced was whether the sodomy law was ``necessary . . . for 
the protection of health or morals'' (the quoted language being the 
text of Article 8(2) of the Convention). The ECHR emphasized that in 
this context ``necessary'' meant a ``pressing social need'' or a 
``particularly serious reason'' and not merely ``reasonable.'' \21\ In 
the U.S. case, in contrast, assuming that the Lawrence Court was 
following its own precedents in other respects, the Court was asking 
not whether sodomy laws were ``necessary'' but whether they were 
reasonable--that is, exactly the question Dudgeon said it was not 
asking.
---------------------------------------------------------------------------
    \21\ Dudgeon v. United Kingdom, 45 E.C.H.R., para. 49-52 (1981).
---------------------------------------------------------------------------
    The question, then, is how the conclusions of a European Court, 
interpreting a legal document totally distinct in language and context 
from the U.S. Constitution, could have implications for the correct 
interpretation of the U.S. Constitution. In a strictly legal sense, the 
answer should be that they do not, because the two courts are engaged 
in a distinct legal enterprise. Contrary to the observations of one 
U.S. Supreme Court Justice, there is no such thing as a ``global legal 
enterprise in constitutional law,'' \22\ because there is no single 
global constitution. There is broad commonality among constitutional 
courts only if one thinks that the courts are not really interpreting 
texts, but deciding whether sodomy laws are justifiable as a matter of 
moral and social policy.
---------------------------------------------------------------------------
    \22\ Justice Breyer, quoted in Roger Alford, Misusing International 
Sources to Interpret the Constitution, __Am. J. Int'l L.__ (forthcoming 
2004).
---------------------------------------------------------------------------
    As in Atkins, under our constitutional system legislatures not 
courts should make decisions regarding matters of moral and social 
policy. It is appropriate for legislatures to consider the moral and 
social policy decisions of foreign jurisdictions with respect to anti-
sodomy laws to guide their own moral and social decisionmaking on that 
issue. Courts, on the other hand, make (or should make) decisions 
concerning interpretation of specific legal texts. It is appropriate 
for courts to consider the interpretive decisions of foreign 
jurisdictions to guide their own interpretive decisions on the same 
legal texts. As the foregoing discussion illustrates, in relying on the 
Dudgeon case in Lawrence, the Supreme Court was not looking to the 
European court for interpretative guidance as to the meaning of a legal 
text, but was looking to the European court for guidance as to moral 
and social policy.
    In sum, in both Lawrence and Atkins the Supreme Court did not 
appear to be looking to foreign materials to aid in legal 
interpretation of the text of the U.S. Constitution, but rather it 
looked to foreign materials to provide what Professor Gerald Neuman has 
called ``normative insight.'' But it is contrary to the constitutional 
role of courts for courts (rather than legislatures) to be making moral 
and social policy in this way. Courts should decide what a text means, 
not what the best moral and social outcome should be. The meaning of a 
text that forms part of U.S. law is not affected by what other 
jurisdictions have decided about matters of moral and social policy, or 
by what other courts have decided about the meaning of different legal 
texts.

   PRINCIPLED ADJUDICATION AND THE DANGER OF USING FOREIGN MATERIALS

    While realists may say that courts routinely make decisions of 
moral and social policy, there are particular dangers of U.S. courts 
relying (or purporting to rely) upon foreign materials in this process. 
As part of our constitutional system, we expect courts to make 
decisions on the basis of neutral, generally applicable legal 
principles.\23\ If U.S. courts adopt a practice of relying on foreign 
materials, we would expect that foreign materials be treated as 
authoritative guides as a general matter, not merely in cases in which 
the foreign materials happen to support moral and policy intuitions 
arising from other sources. But this principle leads to one of two 
outcomes, each unsatisfactory.
---------------------------------------------------------------------------
    \23\ See Herbert Wechsler, Toward Neutral Principles of 
Constitutional Law, 73 Harv. L. Rev. 1 (1959). As the Court's plurality 
put it in Planned Parenthood of Pennsylvania v. Casey, the Court's 
legitimacy arises from it ``making legally principled decisions under 
circumstances in which their principled character is sufficiently 
plausible to be accepted by the Nation.'' 505 U.S. 833, 866 (1992).
---------------------------------------------------------------------------
    First, courts might in fact treat foreign materials as 
authoritative across the board. The result, though, would likely be a 
lessening of U.S. rights. The recent push for foreign materials has 
come most strongly from rights advocates, and in Lawrence and Atkins 
the United States lagged at least parts of the world, and parts of 
world opinion, in guaranteeing the rights at issue. But there is 
nothing necessarily rights-enhancing about foreign materials. In many 
areas, it seems likely that the United States is an outlier in 
protecting rights that few other societies recognize--such as the First 
Amendment. As I have suggested, freedom of speech is one important 
example. Another is freedom of religion: many countries have much 
greater establishment of religion (as in Europe, where many countries 
have an established church or explicitly ``Christian'' parties); at the 
same time, many countries have lesser protections for the free exercise 
of religion (as the controversy in France over headscarves and other 
religious headgear suggests).\24\
---------------------------------------------------------------------------
    \24\ See Christopher Marquis, U.S. Chides France on Effort to Bar 
Religious Garb in Schools, N.Y. Times, Dec. 19, 2003, at A8.
---------------------------------------------------------------------------
    Beyond the First Amendment, it seems clear that many foreign 
nations lack the rights, for example, to bear arms and own property 
guaranteed in the U.S. Constitution--indeed, as with many of our 
constitutional provisions, the framers' intent was to guarantee rights 
that were not traditionally recognized elsewhere. In addition, the 
United States has elaborate procedural protections for criminal 
defendants, as a matter of the Court's interpretation of open-ended 
constitutional clauses such as ``unreasonable'' search and ``due'' 
process, that likely go far beyond those existing in most foreign 
nations. For example, it appears that the ``exclusionary rule'' of the 
Fourth Amendment, which excludes from trial evidence obtained in 
unconstitutional searches, has few counterparts worldwide.\25\ Should 
each of these rights be re-evaluated to see if they are generally 
recognized by foreign nations, and abandoned if they are not? If we are 
serious about the project of using foreign materials, we must ``take 
the bitter with the sweet'' and use foreign materials to contradict, 
not merely to confirm, our own view of rights.
---------------------------------------------------------------------------
    \25\ See Erik J. Luna & Douglas Sylvester, Beyond Breard, 17 
Berkeley J. Int'l. L. 147, 177-79 (1999) (``Legal rules suppressing 
relevant probative evidence from criminal trials are few and far 
between outside the United States.'').
---------------------------------------------------------------------------
    I doubt, though, that there is the moral and political will to 
apply foreign materials in this way. More likely, then, is the 
selective use of foreign materials to support judgments reached for 
other reasons. One can already see this developing in Supreme Court 
advocacy and jurisprudence. First, there is selective citation to 
countries whose practices happen to support a particular result, but 
not to those that contradict it. In Lawrence, for example, the Court 
discussed some jurisdictions that had overturned or repealed their 
sodomy laws, but did not discuss anything close to a general practice 
of nations. Though I have not made systematic inquiries, it seems 
likely that quite a number of foreign jurisdictions criminalize sodomy. 
This went unmentioned in Lawrence. In Atkins, the Court claimed, 
without adequate support, that ``world opinion'' opposed execution of 
the mentally handicapped. In fact, it appears that many leading death 
penalty jurisdictions do not make such a categorical exception, and 
that opposition comes mostly from countries and scholars that oppose 
the death penalty across the board.
    Of course, one might say that some countries are better moral 
models than others. Should it matter, for example, that Chinese law 
apparently permits the execution of the mentally handicapped? But 
attempting to articulate a legal principle justifying this sort of 
selectivity, if done explicitly, leads courts into another 
unsatisfactory choice. Presumably we do not want attorneys arguing, and 
the Supreme Court deciding, which of (say) Japan, Thailand, Pakistan, 
China, etc., are sufficiently ``civilized'' to serve as moral 
precedents.
    A further selection problem is that the Supreme Court has invoked 
foreign materials only in some cases, and not others. As Professor 
Roger Alford has pointed out, the Court's recent decision invalidating 
the previous federal law against late-term abortions under the due 
process clause, Stenberg v. Carhart, made no reference to foreign 
materials.\26\ Yet it seems likely that foreign jurisdictions have 
grappled with this issue. Moreover, it seems at least possible that the 
weight of foreign practice (which generally does not embrace abortion 
rights as fully as U.S. jurisprudence) does not permit late-term 
abortions. It is hard to square Stenberg's disregard for foreign 
practice with Lawrence, which involved the same clause of the U.S. 
Constitution, other than on the ground that in Lawrence the Court 
approved of the foreign practice and in Stenberg it did not.
---------------------------------------------------------------------------
    \26\ Stenberg v. Carhart, 530 U.S. 914 (2000); see Roger Alford, 
Misusing International Sources to Interpret the Constitution, __Am. J. 
Int'l L.__ (forthcoming 2004).
---------------------------------------------------------------------------
    This selectivity confirms that courts are not really being guided 
by foreign materials in their readings of specific texts, but are using 
foreign materials to support decisions of moral and social policy 
reached on other grounds.\27\ And this further confirms that 
considering foreign practice as a guide to moral and social policy 
decisionmaking is properly a legislative, not a judicial, function. 
Legislatures acknowledge that their decisions are policymaking that is 
not based on interpretive principles. Thus they are free to consider 
the views and practices of foreign jurisdictions, adopting what they 
like and discarding what they do not like, for policy reasons without 
the need to justify their decisions in judicial terms. When courts 
behave in this way (as it seems inevitable that they will in dealing 
with foreign materials), the rule of law and the role of courts is 
undermined.
---------------------------------------------------------------------------
    \27\ See Diane Marie Amann, Raise the Flag and Let it Talk: On the 
Use of External Norms in Constitutional Decisionmaking, 2 Int'l J. 
Const. L.__ (forthcoming 2004). Professor Amann predicts, as I do, that 
courts will likely behave in this way, adopting ``external norms'' 
(i.e., foreign views of moral and social policy) that they like and 
discarding those they do not like, in an essentially legislative 
fashion. We differ on whether this is appropriate.
---------------------------------------------------------------------------
                               CONCLUSION

    In Lawrence and Atkins, the use of foreign materials, while open to 
serious question, probably did not affect the ultimate outcome of 
either case. To see the potential scope of the use of foreign 
materials, it may be useful to consider recent comments by Professor 
Harold Koh of Yale Law School. In an article published in the U.C. 
Davis Law Review, Professor Koh urged that human rights advocates use 
foreign materials to persuade the Supreme Court to abolish the death 
penalty.\28\
---------------------------------------------------------------------------
    \28\ Harold Hongju Koh, Paying ``Decent Respect'' to World Opinion 
on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002).
---------------------------------------------------------------------------
    It seems plain that the Framers did not intend to exclude the death 
penalty through the Eighth Amendment. It also seems plain that the 
death penalty, in appropriate circumstances, is consistent with modern 
American social values, based on the broad acceptance of the death 
penalty in the United States. But Professor Koh is correct that many 
countries, particularly in Europe, reject the death penalty as a matter 
of moral and social policy.\29\ The question is whether and how we 
should take that into account.
---------------------------------------------------------------------------
    \29\ It is worth noting that Professor Koh's use of foreign 
materials is--like the Court's--selective. The death penalty has not 
been abolished in all countries, including in liberal democracies such 
as Japan. Moreover, polls suggest that in Europe the death penalty is 
much more popular among the ordinary population that among elites. See 
Crime Uncovered, The Observer, April 27, 2003 (reporting poll showing 
67% in Britain support re-introduction of the death penalty). Moreover, 
I doubt Professor Koh would endorse using foreign materials to guide 
courts' decisionmaking on abortion or criminal procedure matters where 
the United States is more protective of rights than other nations.
---------------------------------------------------------------------------
    As indicated above, I think it appropriate for Americans to 
consider Europe's abolition of the death penalty in deciding whether we 
should retain it. The key, though, is that the legislatures (and the 
people, acting through their legislatures) should consider it, not the 
courts. The courts' role is limited to deciding whether the death 
penalty is consistent with the meaning of the Eighth Amendment--either 
its original meaning, or, in some versions, its ``evolving'' meaning as 
informed by the evolving values of American society. Europe's current 
view of the death penalty as a matter of moral and social policy does 
not inform the original meaning of the Eighth Amendment nor the values 
of modern American society, and so should not figure in the courts' 
view of the Eighth Amendment. Professor Koh's suggestion that we give 
consideration to Europe's views is correct, but addressed to the wrong 
forum. The decision whether or not to change American moral and social 
policy to abolish the death penalty may take into account Europe's 
view--but that decision should be taken by legislatures, not courts.
    For these reasons, I think it is important for courts to limit 
their use of foreign materials to situations in which the foreign 
materials are clearly related to interpretive questions of a particular 
text. When courts use foreign materials to support freewheeling 
explorations into moral and social policy, they exceed the judicial 
role.

    Mr. Chabot. Thank you, Professor.
    And our final witness this morning will be Professor 
McGinnis.

  STATEMENT OF JOHN OLDHAM McGINNIS, PROFESSOR, NORTHWESTERN 
             UNIVERSITY SCHOOL OF LAW, CHICAGO, IL

    Mr. McGinnis. Thank you very much, Mr. Chairman. I'm very 
grateful to be here today on I think a very important issue. 
I'd just like to make a few points to emphasize and to perhaps 
disagree with certain points that have been made.
    First of all, I think it is very much that this Committee 
and this Congress has complete authority to pass a resolution 
offering its own opinion on how the Constitution should be 
interpreted. I think, in fact, the Congress should do more of 
that. The Congress has an independent authority to interpret 
the Constitution for the courts. Of course, the Congress cannot 
prescribe or change the way a court is going act, but that 
doesn't mean that it's not valuable for the Congress to offer 
its own opinion on how the Constitution should be interpreted. 
Indeed, it's more--they have done so in the past on things like 
the Pledge of Allegiance case, but it's more important in 
something like this, a cross-cutting issue across 
constitutional law that raises questions about the first 
principles of our republic. So I think there is no doubt the 
Congress has authority to do this.
    Secondly, I think there's also no doubt that this is a 
serious problem that the courts are using and are thinking of 
using more often in the future a foreign and international law 
as perhaps outcome determinative precedent in U.S. 
constitutional cases, and I think one can cite the speech that 
the Chairman cited. In fact, I would refer to Justice 
O'Connor's speech and quote this language: After discussing the 
Atkins case in Lawrence v. Texas, she said about those cases in 
ruling that consensual activity in one's home is 
constitutionally protected. The Supreme Court relied upon, in 
part, on a series of precedents from the European court, and I 
suspect that we're going to do so more in the future, relying 
on the rich resources available in the decisions of foreign 
courts.
    The term ``relied upon'' I think suggests that these kind 
of precedents can be outcome determinative. If they are mere 
decoration in opinions, then I think the Court wants to be very 
careful and clear about that these are not going to influence 
the actual outcome; otherwise, I think the Court's decisions 
become less transparent to the public.
    The question of why we should not use contemporary foreign 
law to interpret the Constitution I think relates in part to 
the proper way of interpreting the Constitution. The 
Constitution should be interpreted according to its original 
understanding. It would be very rare that contemporary foreign 
law could be relevant to that inquiry of what is the original 
understanding, and therefore I would distinguish the uses of 
international law in the 19th Century. Often international law 
at that time, when it grew up right around the time of the 
Constitution, could be useful to understand the meaning of the 
Constitution.
    Moreover, I think the use of the international or foreign 
law in the Federalist Papers really proves the point here. 
After all, the Federalist Papers were advocates for the 
Constitution. They were really acting to persuade the ratifiers 
to ratify the Constitution. Surely, it would be completely 
appropriate for Members of Congress to refer to international 
decisions if they ask their colleagues to pass a statute. 
That's quite a different use of foreign law than to use it in 
the course of interpretation of the Constitution.
    I just add three final points that I'd like to emphasize 
about why I think there are risks, really quite pragmatic 
risks, about using our foreign law to interpret our 
constitution. One that's been discussed previously is the 
additional discretion it gives to Supreme Court justices. They 
can pick and choose the kinds of decisions that they would like 
to support their case, and that is problematic.
    But there are two other things that I think have not really 
been focused on that I think are equally problematic with using 
foreign law. One is the idea that foreign law may seem like an 
American law, but is really very different, and that's 
exemplified by Lawrence. As Professor Rubenfeld of Yale 
University has pointed out, European human rights law really 
proceeds on a whole different theory from American law. It 
really proceeds on a natural law theory, something that is 
going to be imposed quite on the people, whereas our own human 
rights have really been actually produced by the people in the 
deliberative process of ratifying the Constitution; and our 
system also has a lot more emphasis on federalism, a lot more 
emphasis on decentralization and competition in human rights 
law and, again, not the kind of centralized imposition, typical 
of Europe.
    And, therefore, it can be quite misleading to try to 
transplant the European decision into the American context, 
because we have a whole set of different institutions for 
creating norms. I'm not at all suggesting that the European 
system isn't good for them, but it's not necessarily good for 
us. It's a mistake to look this tip of the iceberg of a whole 
complex structure of government and then translate it over into 
our law.
    The final point is that ultimately too much reliance on 
foreign law has the potential to alienate our citizens from 
their own constitution. It's ``we the people'' who have 
constituted our constitution, and that's more than a formal 
point. Our citizens' affection for their own constitution is 
one of the things that keeps our republic stable. In the 19th 
Century, that affection was expressed, actually, through 
parades in the street in favor of our constitution. That may be 
a little harder to get in an age of C-Span, to get people to 
parade in favor of their constitution, but that affection for 
their constitution is still crucial to maintaining the 
stability and their interest in the Constitution.
    There's a risk of citing these foreign cases and relying on 
these foreign cases. That might seem very chic to the 
cognoscenti, but that cosmopolitan style comes with a price. It 
comes with a price of alienating the affections of the citizens 
on whom constitutional government ultimately depends.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Professor McGinnis follows:]

                 Prepared Statement of John O. McGinnis

    Thank you, Mr. Chairman, for inviting me to participate in this 
hearing on the important subject of the federal judiciary's use of 
foreign or international law to interpret the Constitution and other 
laws.
    First, I want to make clear that this House has the authority to 
offer its own opinion on the relevance of foreign or international law 
to constitutional interpretation, or for that matter, any other 
contested subject of constitutional interpretation. Congress's duty to 
share its independent interpretation of the Constitution flows directly 
from a system of separated powers, designed in part to ensure that each 
branch has the opportunity to correct the mistakes and excesses of the 
others. There is no area in which such a self-correcting mechanism 
should be given freer play than in the interpretation of a 
constitutional republic's fundamental document. As James Wilson, Framer 
of the Constitution, Justice of the Supreme Court, and first law 
professor of the republic, stated, ``[t]here is not in the whole 
science of politicks a more solid or a more important maxim than this--
that of all governments, those are the best, which, by the natural 
effect of their constitutions, are frequently renewed or drawn back to 
their first principles.'' \1\ By holding a hearing on whether it is 
appropriate to use contemporary foreign law as a source of authority in 
constitutional law, this Committee is directly contributing to 
conserving the first principles of republican government.
---------------------------------------------------------------------------
    \1\ See 1 The Works of James Wilson 291 (Robert Green McCloskey, 
ed., 1967).
---------------------------------------------------------------------------
    This hearing, however, is not prompted simply by the academic 
question of the relevance of foreign and international law to 
constitutional interpretation. In the recent case of Lawrence v. 
Texas,\2\ the Supreme Court held that the due process clause protected 
a substantive right to sodomy and relied upon a case from the European 
Union as persuasive authority for that result.\3\ After citing the 
case, Justice Anthony Kennedy, writing for the majority, pressed the 
European analogy:
---------------------------------------------------------------------------
    \2\ 123 S.Ct. 2742 (2003).
    \3\ The case was Dudgeon v. United Kingdom, 35 Eur. Ct. H.R. 
(series A) 1981. Some have argued that this citation was simply a 
response to the claim in Bowers v. Hardwick that homosexual conduct has 
never been tolerated in Western civilization. Neither the majority 
opinion in Bowers nor Chief Justice Burger's concurrence, however, made 
any such claim. In any event, the best interpretation of the language 
quoted is that the Court is citing this as persuasive precedent for its 
own holding.

        The right the petitioners seek in this case has been accepted 
        as an integral part of human freedom in many other countries. 
        There has been no showing that in this country the governmental 
        interest in circumscribing personal choice is somehow more 
        legitimate or urgent.\4\
---------------------------------------------------------------------------
    \4\ 123 S. Ct. at 2483.

    Thus, the question I want to address is whether the Court should 
use foreign or international law as persuasive authority in 
interpreting our own Constitution. I believe that subject to certain 
caveats the Court should not use foreign law or international law and 
that its use in Lawrence is exemplary of all that is wrong with such an 
approach to constitutional interpretation. I should note that this 
question is entirely separate from the question of whether Lawrence was 
rightly decided and certainly separate from whether laws against sodomy 
are wise. I, for my part, think such laws are unwise and should be 
repealed.
    One straightforward argument that rules out most use of foreign law 
in constitutional interpretation is that in almost all cases it is 
inconsistent with the correct way of interpreting the constitution--
interpreting the Constitution according to its original meaning. 
Obviously, I cannot provide a complete defense of originalism here, but 
two important factors powerfully favor its soundness as a method of 
constitutional interpretation. The first argument for originalism 
derives from the reasons that justify giving a provision of the 
Constitution priority over a statute when the two conflict. A 
constitutional provision has a greater presumption of beneficence than 
a statute because it commanded broader social consensus, having had to 
pass supermajoritarian hurdles to be enacted.\5\ But that beneficence 
depends on the meaning that the ratifiers of the constitutional 
provision attached to it. It was this meaning that commanded the 
widespread consensus that permits it to trump statutes passed by 
contemporary majorities. Therefore only by employing the original 
meaning of a constitutional provisions are judges justified in 
invalidating statutes enacted by democratic majorities.
---------------------------------------------------------------------------
    \5\ John O. McGinnis & Michael Rappaport, Our Supermajoritarian 
Constitution, 80 Tex. L. Rev. 703, 791 (2002).
---------------------------------------------------------------------------
    The other primary argument for originalism focuses on the 
institutional competence of the judiciary. It parallels the argument 
for democracy itself. Originalism is the worst system of interpretation 
except for all the others. While sometimes it is difficult to discern 
the original meaning of the constitution because of the passage of 
time, at least the inquiry into historical meaning requires judges to 
engage in disciplined search for objective evidence and to consider the 
purposes of others rather than their own. As such, originalism 
constitutes a break on judicial wilfulness and subjectivity--tendencies 
that deprive the judiciary of the comparative advantage they hold over 
other political actors in constitutional interpretation and therefore 
undermine the justification for the judiciary's power to invalidate 
statutes through judicial review.
    Moreover, originalism is the default rule we apply to interpreting 
any historical document. If a historian wanted to understand the 
meaning of the Mayflower Compact, for instance, he would obviously 
consult sources available to those who wrote the document in 1620 
rather than contemporary sources. However, if we abandon this common 
default rule of interpretation, there are scores of current 
interpretative theories from which to choose and many others that 
surely will be advanced by scholars yet unborn. Originalism is thus the 
only theory that provides a solution to the coordination problem of 
constitutional interpretation. If our Constitution is a common bond, we 
need a common way of understanding it and that common understanding can 
only be provided by the default rule of interpretation that we 
generally apply to historic documents.
    For similar reasons, statutes are to be interpreted according to 
the meaning a reasonable observer would have attached at time of their 
passage. The broad acceptance of this theory of interpretation of 
statutes in fact provides further support for originalism in 
constitutional law. I am sure members of this committee who labor long 
and hard over the details of statutes would want them interpreted as 
its members would have reasonably understood them at the time of 
enactment. Why should we have a different theory of interpretation for 
statutes than for the Constitution? Mere age cannot be distinction 
because many statutes are almost as old as the original constitution 
and a good deal older than the more recent constitutional amendments. 
Moreover, the passage of time does not the erase the meaning of 
historic documents anymore than it erases the meaning of the documents 
we write in our own lives.
    Accordingly, I entirely applaud the premise of the resolution that 
is subject of this hearing. Orginalism which calls for ascertaining the 
meaning that a reasonable observer would have to attached to a law at 
the time of its enactment is the correct theory of the constitutional 
and statutory interpretation. If orginalism is the right interpretative 
theory of the Constitution, there will be little occasion to use 
contemporary foreign precedent as persuasive authority because 
contemporary foreign precedent would not generally cast light on what a 
reasonable person at the time of ratifying the Constitution would have 
understood to be its meaning. Precedent from the United Kingdom or 
elsewhere known at the time of the Framing could have been relevant 
because some provisions of the Constitution might be have been 
understood in terms of such precedent. But the use of such precedent to 
establish the Constitution's historic meaning is not the issue here.
    Within an originalist theory of interpretation there are two other 
possible proper uses of foreign and international precedent. Resort to 
contemporary foreign or international law might be proper if the 
original Constitution calls for reference to contemporary foreign or 
international law. The Constitution may do this in limited 
circumstances as when it permits Congress to ``define offenses against 
the law of nations.'' \6\ Even here it is significant that Congress is 
the body called upon to mediate the relation of international law to 
law in the United States--not the courts. Similarly, of course, 
interpreting treaties which are contracts among nations may require 
attention to foreign and international precedent as a matter or course. 
Once again under the constitutional provisions for treaty making the 
political actors rather the courts are choosing to bring international 
law into our domestic regime.
---------------------------------------------------------------------------
    \6\ U.S. Const. Art 1, sec. 8.
---------------------------------------------------------------------------
    Finally, foreign law could be relevant to prove a fact about the 
world which is relevant to the law. For instance, it might be useful to 
evaluate an assertion that one consequence follows from another, 
because one could show that in some legal systems the consequence does 
not always. follow.
    I would thus modify the resolution to make clear that these uses of 
foreign or international law are legitimate. But none of these possible 
legitimate uses of foreign law detract from the main thrust of this 
resolution which is designed to prevent the use of contemporary foreign 
or international precedent as persuasive authority as matter of course 
in our interpreting our domestic constitution. I would also modify the 
resolution to address questions of the use of foreign and international 
law only in the context of constitutional interpretation, because 
contemporary foreign and international law may well serve as a backdrop 
to statutes, such as those relating to international trade, and thus be 
often relevant to their interpretation. While the resolution by its 
terms does not rule out such use, I think it would be better served to 
focus on what may be a growing problem of abuse of foreign law in 
constitutional interpretation rather than statutory interpretation 
where the problem seems to be less acute.
    Even if one does not accept an originalist theory of Constitutional 
interpretation, substantial pragmatic problems militate against relying 
on contemporary foreign and international law as sources of 
constitutional authority. Therefore even those not disposed favorably 
toward originalism should be skeptical of the use of foreign law as 
persuasive authority.
    First, the Constitution contains no rule as to which of the many 
bits of conflicting foreign rules of law should be used as persuasive 
precedent. Judges therefore are likely to use their own discretion in 
choosing what foreign law to apply and what foreign law to reject. 
Judges will use foreign law as a cover for their discretionary 
judgments.
    Lawrence exemplifies this problem. While the European Union 
protects sodomy as a constitutional right, many nations still 
criminalize sodomy. Why should the Court look to the European Union and 
not these other nations? Perhaps the claim is that we share values with 
the European Union. But this a very vague rule requiring agreement on 
what values are relevant. We actually do not share all values with the 
European Union, as the war in Iraq showed. How do we do know we share 
their values about the appropriate way law should regulate sexual 
behavior?
    Unfortunately, the Lawrence Court never answers this question. It 
instead simply felt free to pick and choose from decisions around the 
world the ones that it likes, to use them as justification or at least 
decoration for its own ruling, and to ignore decisions that are 
contrary. It is hard to think of a more ad hoc and manipulable basis 
for interpreting the United States Constitution.\7\
---------------------------------------------------------------------------
    \7\ The Court may be headed in this direction, not only in 
substantive due process, but in other areas as well. See J. Harvie 
Wilkinson III, International Law and American Constitutionalism 12 
(forthcoming 2004) (wondering what principle judges can use to decide 
which foreign decisions to cite).
---------------------------------------------------------------------------
    Second, the problem with using foreign decisions is that they are 
the consequence of a whole set of norms and governmental structures 
that are different from those in the United States. They may be 
appropriate for their nations but out of place in nations with 
different government structures. Lawrence's use of the EU decision is 
once again exemplary. European traditions are more favorable than 
American traditions to the imposition of elite moral views. Indeed, the 
European notion of human rights in constitutionalism is fundamentally 
different from ours: human rights in Europe are the product of a search 
for eternal normative truths to be imposed against democracy.\8\ This 
is quite different from the American conception of rights as products 
of democracy, albeit of the special democratic processes that produce 
the state and federal constitutions and their amendments.\9\ Moreover, 
the United States has a structure of federalism and more general 
traditions of decentralization that are important processes for testing 
the content of rights.
---------------------------------------------------------------------------
    \8\ See Jed Rubenfeld, The Two World Orders, Wilson Quarterly, 
Autumn 2003, at 23.
    \9\ Id.
---------------------------------------------------------------------------
    Thus, foreign constitutional norms do not just reflect certain 
views about the content of substantive rights but also a foreign mode 
of defining them. Any judicial opinion from another culture is the 
culmination of a complex institutional structure for producing norms. 
The low cost of accessing the mere words of a foreign judicial opinion 
can blind us to the fact that we are only seeing the surface of a far 
deeper social structure that is incompatible with American 
institutions. This does not necessarily mean that the American 
political system as a whole is better than that of some others, but it 
does caution against assuming that judicial decisions from other 
nations will produce the same good effects here that they may produce 
in a significantly different political system.
    Third, promiscuous use of foreign law will undermine domestic 
support for the Constitution. The Constitution begins: ``We the People 
. . . do ordain and establish the Constitution of the United States.'' 
In a formal sense, the entire Constitution is an expression of the 
views of the people of the United States, not some other people. 
Relying on international or foreign law except when the Constitution 
directs us to look at the law flouts this first principle. This formal 
points has social implications. The Constitution has commanded respect 
and allegiance because it our Constitution, not a document imposed from 
abroad.
    This is not a small point but goes to the heart of the stability of 
a political system. A Constitution cannot be maintained simply by self-
interest, because the citizens would then free ride on the efforts of 
others. Thus, if self-interest is the only perspective that individuals 
have toward constitutionalism, the attitude adopted will be one of at 
most benign neglect: let others create the climate of watchful respect 
for constitutional fidelity that is necessary to preserve the 
constitutional order. One important feature of the American tradition 
that overcomes the potential constitutional tragedy of the commons are 
the bonds of affection that citizens have for their founding document. 
In the nineteenth century, this affection was marked by parades and 
celebrations. In our own time which has more distractions, the sense of 
public affection is no less important but harder to express. If foreign 
decisions become a routine source of constitutional law, citizens, 
except for the most cosmopolitan, will lose identity with the document. 
The emphatically American nature of our Constitution has been a source 
of affection and pride that have contributed to our social 
stability.\10\
---------------------------------------------------------------------------
    \10\ See Wilkinson, supra note 7 at 8. (suggesting that too much 
citing of foreign law will make the Justices seem out of touch with 
American culture).
---------------------------------------------------------------------------
    I want to close by discussing an argument that some may deploy to 
suggest that quite a bit of foreign and international law should be 
used in interpreting the Constitution. It is the claim that some 
clauses of the Constitution themselves contemplate an evolving meaning 
and foreign law can help chart the course of this evolution. Thus, the 
Supreme Court itself appears to interpret the cruel and unusual 
punishment clause in light of evolving standards of human decency 
rather than the standards at the time the clause was framed. It is in 
this context that the Supreme Court in Atkins v. Virginia cited to the 
worldwide community's general refusal to execute the cognitively 
impaired as evidence that evolving standards demand that the United 
States end such executions.\11\
---------------------------------------------------------------------------
    \11\ Atkins v. Virginia, 534 U.S. 304, 317 (2002).
---------------------------------------------------------------------------
    Let us assume for a moment that the cruel and unusual clause should 
be tied to evolving standards in general It does not follow that the 
Framers would have wanted to tie these evolving standards to the 
standards of other nations around the world rather than focus only on 
domestic evolution. At the time the Constitution was framed the United 
States was one of the few republican nations in the world and the 
Framers often distinguished its practices from the world's ancien 
regimes. It seems very unlikely that given the self-conscious 
exceptionalism of the United States that the Framers would have wanted 
make the standards of our Bill of Rights depend on the practices of 
other nations. They would have no confidence that those standards would 
not represent retrogression rather than progress. Thus, not only do I 
find no evidence that a reasonable person would have understood our 
Bill of Rights to incorporate the evolving standards of foreign 
nations, the argument seems implausible on its face.
    Lawrence's reliance on the law of the European Union to help 
interpret our Constitution was a mistake. Unfortunately, if accounts of 
Supreme Court Justices' remarks favorable to the reliance on 
contemporary foreign law in constitutional interpretation are accurate, 
Lawrence's error may not be an isolated one.\12\ Passing this 
resolution, as revised along the lines I suggest, would therefore be a 
warranted expression of correct constitutional views and a respectful 
suggestion that the Court reconsider use of contemporary foreign law as 
persuasive constitutional authority. \13\
---------------------------------------------------------------------------
    \12\ See Remarks of Justice Sandra Day O'Connor, Southern Center 
for International Studies, http://www.southerncenter.org/OConnor--
transcript.pdf (seeming to urge greater reliance on foreign law in 
United States constitutional interpretation.
    \13\ Parts of this testimony are based on Nelson Lund & John O. 
McGinnis, Lawrence v. Texas and Judicial Hubris __Mich. L. Rev.__ 
(2004).

    Mr. Chabot. Thank you, Professor.
    And now the Members of the panel will have 5 minutes to ask 
questions. I will first recognize myself for 5 minutes for that 
purpose, and I would direct this question to any of the panel 
members that might like to answer.
    Assuming the views that the ``world community'' should be 
considered when interpreting American law, what principle, if 
any, would exclude the consideration of the policies of, say, 
Communist China whose population alone includes nearly one-
quarter of the entire world's population? I don't know, 
Professor Rabkin, if you might have an opinion about that. Then 
we can go down the line.
    Mr. Rabkin. You know, I was going to hold back for the hard 
questions. That is not a hard question. It just shows that it's 
silly. When they talk about the world community, what they mean 
is their friends in Europe and also in Canada.
    Mr. Chabot. Okay. Professor Jackson.
    Ms. Jackson. I think it's a good question. As I tried to 
say earlier, I think that it can be helpful to interpretation 
to examine sources both to discern what we agree with and the 
discern how we are different, and if a lawyer were to bring to 
the Court a citation--I'm not aware that the People's Republic 
of China actually has a constitutional court. I don't think 
they have judicial review. I don't think they provide the kind 
of protection for rights that we value so highly. But if a 
lawyer were to cite something, you know, I think you might ask 
is it like Justice Jackson telling us about the Weimar 
Constitution so that we know how to construe ourselves 
differently, so that different kinds of sources will be used 
for different things, and should be, depending on their 
context.
    Mr. Chabot. Thank you.
    Professor Ramsey or McGinnis?
    Mr. Ramsey. Well, interestingly, in Atkins, the death 
penalty decision, one of the amicus briefs did cite the 
practice of the People's Republic of China and stated that the 
People's Republic of China did not execute mentally retarded 
offenders as one of the reasons why we should also not. 
Unfortunately, they got that statement wrong, as near as I have 
been able to determine. Actually, Chinese law does not exempt 
mentally handicapped offenders, but, nonetheless, they did make 
the citation.
    My answer to your question is there is no principle basis. 
We may be able to say at the extremes that our values are close 
to those of, say, England and very far from those of, say, 
Somalia, but I think that drawing any kind of a principle line 
is going to be very difficult, especially when you start 
talking about countries that are large, prosperous, rights--
enjoying democracies, but not out of exactly the same tradition 
as ourselves or at least some of our people, such as India, 
China--India, Japan, Thailand, Philippines. Those countries, we 
have many things in common with, many things not in common 
with. I would not like to see an argument to the Supreme Court 
where the lawyers took adverse sides on whether countries such 
as those were appropriate moral precedents, and I don't think 
there's any principle way to draw a line.
    Mr. Chabot. Thank you.
    Professor McGinnis, anything?
    Mr. McGinnis. I would just associate with myself with 
Professor Ramsey's remarks.
    Mr. Chabot. Okay. Thank you very much.
    Let me ask, Professor Jackson, if I could ask you a 
question. You started out at the outset by saying that you're 
opposed to this resolution, and it would simply express the 
view of the House of Representatives. We've not taken the step 
of using our authority to alter the lower Federal courts under 
article I, section 8, for example, or to alter the appellate 
jurisdiction of the Supreme Court on our article III, section 
2. That step might be appropriate in the future, but we have 
not taken that step here.
    Regarding the resolution, however, doesn't the House of 
Representatives or shouldn't the House have the right to 
express its views in a formal fashion as we're attempting to do 
here?
    Ms. Jackson. Well, I certainly think that Members of the 
Congress have a perfect right to express their views on issues 
of constitutional law and issues of constitutional 
interpretation. These issues concern all branches of government 
and all citizens.
    What concerns me, Mr. Chairman, about a collective 
resolution from the House of Representatives is the fact the 
House of Representatives--that the Congress, of course, 
controls to some extent the jurisdiction of the Federal courts. 
The Congress is also the body in power to impeach and remove 
from office the justices, and my concern is that a resolution 
of this nature begins to trench on the courts with respect to 
the interpretive process; and if there is anything that I would 
think was a core judicial function for the courts, it is how to 
interpret.
    And so it is those factors that lead me to be very 
concerned about the proposed resolution.
    Mr. Chabot. Thank you. One final question, Professor 
Rabkin: Could you comment on the implications relative to 
sovereignty if this transnational constitutional trend would 
take root in our courts?
    Mr. Rabkin. Yes. That's a question I was waiting for.
    Mr. Chabot. Excellent.
    Mr. Rabkin. Thank you.
    The premise of this trend is, I think, very clearly 
subversive of the whole concept of sovereignty, because what 
it's saying is there are right answers to how things should be 
done, and all we need to do is to canvass the wise men and 
women of the world wearing robes, and then we'll find out what 
is the right answer and we'll implement it, and sometimes we'll 
learn from the wrong answers that the mistaken countries have 
done. But we're in this process of international dialogue among 
judges to find the right answer.
    Now, the premise of that, if you think it through, is that 
we already live in a world community which is united in this 
common search for right answers, and if that is true, then 
sovereignty is pointless, and not only pointless, because we 
could trust judges of the world to tell us how to live so we 
don't have to make a big fuss, but not only is it pointless, 
but sovereignty then starts to look like something which is a 
dangerous obstruction to the process, because who are we to 
insist on our distinctive ways? Because the community of the 
wise have agreed that it should be this way. So we can't just 
drag our feet and say, ``No, we're doing it differently because 
we're ornery Americans.'' That looks selfish. That looks blind. 
That looks bigoted.
    So I don't think there's any question at all that there is 
a conflict between the notion of sovereignty, the moral claims 
of sovereignty, and the moral claims of these things.
    Mr. Chabot. Thank you, Professor.
    The bells here mean that we have a vote, but I think we 
have time to go ahead with one more set of questions here. So 
the gentleman from California, Mr. Schiff, is recognized.
    Mr. Schiff. Thank you, Mr. Chairman. I have to say I'm very 
struck by this discussion and several others that we've had in 
Committee and on the House floor, just how far we've come, I 
think, in a very negative direction when I look at some of the 
language that's being used in the memorandum, the majority 
memorandum, in preparation for this hearing today which 
describes this nation facing, ``a judicial crisis in which 
judges are increasingly abusing their power as lifetime 
appointees and failing to faithfully interpret the laws by 
following their original meaning.''
    Further language: ``An equally alarming trend is becoming 
clear. Judges in interpreting law are reaching beyond even 
their own imaginations to the decisions of foreign courts.'' 
Later discussion of this: ``If unchecked, this will produce a 
further erosion of American sovereignty.'' The professor talks 
about--uses the word ``subversive.''
    You would think we're talking about a wildly liberal 
activist Supreme Court in the country, and it must be a 
different court than I'm familiar with. Where is this judicial 
crisis that we're concerned about?
    I think this resolution, this discussion, says a lot more 
about the strained relations right now between the Congress and 
Europe, between the Congress and the Court than it does about a 
few what appear to be relatively isolated cases of judicial 
opinions citing some foreign source of authority. There are a 
great many things that find their way into judicial opinions. 
There are references to popular culture, references to TV, to 
movies, to probably expressions like ``Where's the beef?''
    Are we going to resolve that courts should not cite these 
instances of popular culture or well-known literature because 
that is not what Congress was intending when it drafted the 
statute under interpretation? It also probably says something 
about certain decisions that a number of Members, maybe a 
majority of Members, don't like the result of those decisions.
    But more than anything else, I think what this discussion 
and the resolution do is they provide a shot across the bough 
of the judiciary. This is simply a shot across bough, and I 
think we have to ask ourselves why are we shooting across the 
bough of the judiciary, and we are shooting across the bough in 
many directions, in many fashions. We are shooting across the 
bough when we threaten to subpoena the records of Judge 
Rosenbalm who comes before the panel and expresses what's an 
unpopular opinion with the panel. We shoot across the bough 
when we use the word ``impeachment'' in reference to the citing 
of foreign opinion. We shoot across the bough when we make 
massive reforms of the sentencing laws without allowing for the 
input of the judicial conference or the judges.
    And the trend is a very negative one, in my opinion, and 
for this Congress that approves of agreements like chapter 11 
of NAFTA which effectively allow other countries to challenge 
American laws, to raise such a fuss about the threat to our 
sovereignty posed by these isolated references when the threat 
to our sovereignty posed by interpretations of chapter 11 is so 
much more extraordinary is really striking to me. Now, that's 
not to say that we don't have the power to do it. We do. We can 
legislate away our sovereignty, and occasionally we have.
    The courts are not in the same position. They don't have 
the same latitude to precedent away our authority, and perhaps 
many of the foreign references that have been cited here are 
not references I would make if I were a judge. But that we have 
decided to showcase this issue, attack this, I think is part of 
a broader and more disturbing trend that is probably more 
significant than these isolated references to foreign opinion.
    So I really don't have as much a question for our witnesses 
as this comment to make, and that is we are on a downward 
trajectory of our relations between the two branches which is 
not good for the Court and is not good for the Congress, and I 
would hope we would find other ways than resolutions like this 
to try to repair that relationship.
    And I'll yield back the balance of my time.
    Mr. Chabot. The gentleman yields back.
    At this time, we have a series of votes on the floor. We 
have a 15-minute vote and three 5-minute votes following that. 
So we're probably looking at a little more than a half hour 
before we can make it back here.
    So we will be in recess until we come back. As soon as our 
Members are back, we'll get started again. And we thank the 
panel for their indulgence there.
    So we're in recess for a short period.
    [Recess.]
    Mr. Chabot. The Committee will come back to order.
    The gentleman from Florida, Mr. Feeney, one of the 
principal sponsors of this resolution, is recognized for 5 
minutes.
    Mr. Feeney. Thank you, Mr. Chairman, for holding this 
hearing, and I want to thank all of the witnesses. I'm grateful 
today; Professor Rabkin, you gave some testimony I very much 
appreciated. I read your comments. I would suggest, however, 
that we not ridicule this idea of a global law, because if you 
combine Conte's philosophy of an international peaceful 
democratic entity along with Plato's suggestion about how we 
best govern our ourselves with philosopher kings in charge, 
you've got exactly what we are slowly moving to, in my view. So 
there are some great rationale for it. It's just not anywhere 
in our Constitution, in my view.
    And I really wanted to ask the panel a couple of questions. 
Professor Jackson, I appreciate your being here especially. 
It's not easy selling new ideas, but not every new idea is a 
good idea. So we will be interested in your perspective, 
because the other panelists, for the most part, seem to support 
the resolution.
    But I would ask maybe the panel to comment on a couple of 
things and one question specifically for Professor Jackson. 
When Justice Ginsburg sort of justified in a speech the 
increasing use of foreign law--I think the speech I'm referring 
to was to the American Constitutional Society, entitled 
``Looking Beyond Our Borders, August 2, 2003''--she mentioned 
the Declaration, and you did as well in your discussion as sort 
of a justification for how we ought to--I think you referred to 
``have a decent respect for the opinions of mankind,'' but 
you'll recall, and I think Justice Ginsburg actually 
acknowledges it, but in your testimony, written, you don't, the 
entire reason Jefferson and his friends included that phrase, a 
decent respect for the opinions of mankind, was to say that as 
we dissolve our political ties to another State and as we 
assume our separate and equal station among the world powers 
and as we declare ourselves separated, because we have a decent 
respect for the opinions of mankind, we're going to explain to 
the rest of the world why we are separated, not incorporating 
their law, not acknowledging their law, but separating from it. 
And then, of course, later in a phrase that Representative King 
cited, one of the reasons we are separating is, of course, we 
don't want to subject ourselves to jurisdiction foreign to our 
constitution and unacknowledged by our laws.
    So I think it's a little bit disingenuous, candidly, to use 
that specific phrase of the important expression in the 
Declaration.
    With respect to the Constitution or the Declaration or even 
the Federalist Papers, I would like any of the panelists to 
give me an expressed provision that they think justifies the 
importation of foreign laws to determine the original meaning. 
Remember that's the phrase in the resolution. If you can find 
any, I would like to see it.
    Professor Jackson, you refer to Federalist 63, but of 
course that is suggesting to Congress that we ought to pay 
attention to foreign countries, and I happen to totally agree 
with that. We're talking about whether our courts ought to.
    And then the other thing that I would like, Professor 
Jackson, if you would address, because on the one hand, your 
comments seem to say what the courts are doing is not really 
new. I don't want to get into the details, but virtually all of 
the cases you cited either involve international law, 
international vessels, in one case, the sovereign community, 
the Native Americans, and so it's perfectly appropriate and 
would not only not be prohibited, but actually endorsed by the 
revolution that I've sponsored to do all of what historically 
you cited justices did until the last 20 years.
    It is the new stuff that we're very concerned about, and 
I'm very concerned that one of things--you say on the one hand, 
nothing new is happening, but on the other hand, in your 
comments you suggest that it is appropriate for our courts 
since some countries endorse or ratify or adopt parts of our 
laws or Constitution. Then there is new a interpretation that 
their justices have. You think it's appropriate for our courts 
to adopt their new interpretation.
    Finally, I would like to challenge all of the witnesses 
today, and I'll close with this, Mr. Chairman, by my quick 
summation, creating new law based on what foreign countries are 
doing, their constitutional law in courts, in my view violates 
at times articles I of the Constitution, because it usurps our 
legislative authority; violates article II, because it 
prohibits a presidential veto of new law; violates article 
III--violates article IV with respect to guaranteeing a 
republican form of government, because nobody is permitted to 
vote for the justices that are making this law by reference to 
foreign law; violates article V, the treaty provisions, because 
we end up at times basically ratifying agreements with other 
countries even though neither the legislature nor the President 
was involved in this new treaty; and, finally, violates article 
VI, the supremacy clause.
    So my challenge to the professors is can you identify 
anything in article III that may be violated by creating new 
law by reference, because I haven't been able to yet, and 
you've got better background in this than I.
    Thank you, Mr. Chairman.
    Mr. Chabot. The gentleman's time has expired, but the 
witnesses can respond to the questions as they would so choose 
to do so. I guess most of the questions were directed at 
Professor Jackson.
    Ms. Jackson. Thank you, Congressman Feeney, for your 
questions. I'll try to respond to them.
    I certainly didn't mean to be disingenuous in referring to 
the Declaration. I think my remarks made clear that I think 
that foreign law and practice can help us both understand how 
we are separate, and there are many uses in the U.S. reports in 
which the Court says, ``Well, they did it that way in England 
and we want it to change. There are also other places in the 
U.S. reports where the Court says we are trying to protect the 
same rights that Englishmen had and in which British cases and 
practice are used to inform our understanding of what our law 
is.
    But I think the Declaration of Independence is also 
relevant in another respect here, if I may. The second 
paragraph of the Declaration begins with the statement that 
``there are certain truths that are self-evident, that all men 
are created equal, that they are endowed by their creator with 
certain unalienable rights.'' And while the Declaration of 
Independence, of course, is not our Constitution, I think it is 
not unreasonable to look at some of the rights-protecting 
provisions in our Constitution as a written effort to provide 
protection to rights that were understood to attach to all 
people by virtue of their being people.
    And so to that extent, some, at least, of the rights-
protecting provisions in the U.S. Constitution are designed to 
protect rights that are widely shared, that should be 
understood to attach to human beings, and thus I think it is 
reasonable to think that we could learn something.
    I want to resist the language of importing foreign law, 
because I don't think that's what the Court did in Lawrence. I 
think the Court referred to foreign law in much the same way 
that it referred to the decisions of five State courts in the 
United States, which the Supreme Court in Lawrence said since 
the Bowers decision had rejected the Supreme Court's reasoning 
about the Federal Constitution to reach a different decision 
under their own State Constitutional law, which can be 
different from the Federal Constitution as long as it doesn't 
violate the Federal Constitution. These are legal sources that 
are not binding, and I think that's an important point, but 
that illustrates how other courts thinking about similar 
problems have resolved them and, in that sense, I think are 
helpful.
    Let's see. On the Federalist Papers, absolutely right. 
Federalist 63 was directed to the Senate and the benefit of the 
impartial counsel that sometimes one might get from other 
countries and sometimes I'm sure not, but in Federalist 79--I'm 
sorry--Federalist 80, there is a discussion about the need for 
the judicial power to be broad enough to resolve disputes in 
which foreign nations might have an interest. Now, that passage 
doesn't talk about how the court will do it, but, as we know, 
our early court did invoke the law of nations in many cases.
    It is true, Congressman Feeney, that in the last----
    Mr. Feeney. With unanimous consent, Mr. Chairman, that 
Federalist 80, as I recall, is an explanation of the original 
jurisdiction delivered to the Supreme Court. So, again, it is 
pursuant to the Constitution that the U.S. Supreme Court has 
jurisdiction of those cases. This is not some new understanding 
that the Constitution or the Federalist Papers are suggesting.
    Ms. Jackson. It's an explanation of the reasons why the 
jurisdiction was extended, because of a concern that our courts 
be able to deal with disputes in which either foreign subjects 
or citizens or foreign nations had an interest. There is 
something new in that international law, particularly in the 
period since World War II, has become concerned, as many 
nations were, with the kind of gross abuses of human dignity 
that we saw during World War II. And beginning, really, in 
cases in the 1940's, the Supreme Court of the United States, in 
explaining our concepts of liberty (that's what I think is 
going on, is what do we understand our constitutional concepts 
of liberty and equal protection to refer to) began using the 
term ``human dignity.'' Now, this is a new term, but it 
wasn't--I don't think of it as importing something foreign, but 
rather expressing the justices' understandings informed by what 
we and other countries in the world saw happen when basic human 
rights were trampled.
    Mr. Chabot. The gentleman's time has expired. Did you want 
to sum up what you wanted to say in response, Professor, or do 
you want us to move on to another questioner?
    Ms. Jackson. I probably have said enough, but the basic 
point, Mr. Chairman, is that what I see the Court doing with 
these references is trying to get the best understanding of the 
concepts involved in order to give the best interpretation to 
U.S. law.
    Mr. Chabot. Okay. Thank you.
    The gentleman for Iowa, Mr. King, is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman.
    As I sit here and listen to this testimony today and I get 
a chance to hear the feel for some opinions which I dissent 
with and begin to reflect upon how this fits within the larger 
view and what can happen if we allow this to flow along and 
some of the other values that are around this world that might 
be chosen from the great menu of case law that's in this world 
today and I think in particular the case of Lawrence and what 
might happen if there were a particularly rigid justice that 
might decide to take some case law from other countries, other 
countries that have an exactly divergent view from that which 
is reflected Lawrence, in fact, countries that execute people 
for that behavior, and so I think it's really dangerous to go 
and borrow from somebody else's set of values when we have a 
body here and a number of our legislative branches from our 
political subdivisions all the way here to Congress that 
reflect the values of the United States of America.
    In fact, I almost hear a presumption that foreign courts 
are more enlightened in some cases than we are here. And so, 
you know, I would argue that in the case of Lawrence v. Texas 
that the 10th amendment was set aside in preference to other 
case law from other nations, in part at least, and that is 
something that is chosen, again, from the menu of preferred 
result, from my view, and I would also argue that in the case 
of Grutter v. Bollinger that the 14th amendment was set aside 
in preference for an idea that is written clearly in that 
majority opinion, and I'll describe it this way: that skin 
color has academic value as defined by diversity, not human 
experience, not diversity of human experience, but diversity 
itself as defined by skin color has an academic value that the 
university can only define when they reach this surrealistic 
critical mass that gives it the academic value, and only they 
can be the judge of that.
    Now, I cannot for the life of me connect that kind of a 
definition to the Constitution itself or any Federal statute 
that we have, and so I'm very concerned about where this goes 
and where this takes us if there's this much latitude, and 
what's at the center of my question is, and I direct it to 
Professor Jackson, as she probably anticipated, and that would 
be you raised objection to the legislative branch intervening 
in the separation of powers, and so my question to you would be 
at what point would you be willing to acknowledge that the 
Congress has the authority and/or should step in to redefine 
this line of the separation of powers?
    Ms. Jackson. Well, Representative King, in just a point of 
clarification, in the Grutter decision, my recollection is that 
the only reference to foreign or international law was the 
reference in Justice Ginsburg's concurrence, and it concerned 
the idea that the Court could say something is permitted, but 
for a temporary period of time; and in connection with that 
piece, my recollection is she referred to some international 
documents that at least one of which we're not a party to, one 
of which I think we were. But I think it went to that rather 
than what I take to be what troubles you, which is that the 
Court concluded in Grutter that a particular consideration of 
race along with other factors----
    Mr. King. Let me go a little further, and in that majority 
opinion, I believe it was written by Justice O'Connor that we 
should review this in about 25 years; maybe by then, we can 
reapply the 14th amendment.
    Ms. Jackson. Well, you know, what equality means in any 
given period of time, particularly given its remedial purposes, 
is something that we have learned does--our evaluations of it, 
the Court's evaluations of it from within U.S. traditions has, 
indeed, changed over time.
    Mr. King. And given the short amount of time that I have, 
excuse me, but could you address the central question? At what 
point would you be willing to endorse Congressional 
intervention in re-establishing the separation of powers?
    Ms. Jackson. I don't think the separation of powers is put 
in danger by anything the Supreme Court of the United States 
did in the Grutter case, and that's the difficulty I have with 
the question.
    Mr. King. And what about--then let's go to Dredd Scott 
where we can agree.
    Ms. Jackson. In Dredd Scott, we had a Constitutional 
amendment in a civil war in which many people suffered greatly.
    Mr. King. And some of us believe that that's a case where 
the Court actually failed.
    Ms. Jackson. Many people do. The original Constitution at 
that time, however, had many ambiguous provisions with respect 
to an institution that was abhorrent and that is a deeply 
deplorable part of our history.
    Mr. King. So the Constitution, though, does give Congress 
the authority to step in and re-define this line at some point; 
would you concede that point, Professor?
    Ms. Jackson. I'm unclear on what line. I do not think 
Congress has authority to direct the Supreme Court how to 
interpret cases within the judicial power that the Court is 
deciding. I think there was a case--it's not in my statement. 
I'm sorry--called Klein v.The United States from the 1870's 
where the issue before the Court had been whether someone who 
had received a presidential pardon was entitled to be 
compensated for property taken by the northern armies. The 
Congress was very unhappy that the Court concluded that people 
who had been pardoned were eligible for this compensation. So 
it enacted another law that had many provisions, and it's a 
complicated case that I don't have time to do.
    And the Court said, ``Congress, you can't tell us to decide 
the case this way; this is for the Court to do.''
    Mr. King. So one could conclude, then, from your response 
that you wouldn't recommend that Congress intervene at any 
point that you would be willing to define?
    Ms. Jackson. Not with respect to how the Court interprets 
the Constitution.
    Mr. King. Thank you.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from New York, the Ranking Member of the 
Committee, Mr. Nadler, is recognized for 5 minutes.
    Mr. Nadler. Thank you.
    Let me begin by saying, to answer Mr. King, Congress can 
step in at any time to propose a Constitutional amendment. 
That's the only way it can do it.
    Let me begin by saying that I think it is wholly improper. 
This resolution is wholly improper. Any resolution purporting 
to tell the courts that this decision was wrong or that 
decision was wrong--we passed a couple of them last year--I 
think is improper. It would be as improper as the Supreme Court 
saying to Congress that the bill we passed was stupid or wrong. 
I mean, those are both violations, it seems to me, of 
separation of powers.
    If we disagree with a Supreme Court decision, if that 
decision is interpreting the law, we can change the law. If 
that decision is interpreting the Constitution, we can propose 
an amendment to the Constitution. That is our role. To simply 
pass free-standing resolutions saying that the Court is wrong 
or the Court didn't do that is as at best ultra vires and a 
violation of the separation of powers, and at worst, an attempt 
at intimidation.
    I have here a MSNBC report quoting the sponsor of this 
resolution, Mr. Feeney, saying, ``This resolution advises the 
courts that it is improper for them to substitute foreign law 
for American law or the American Constitution. To the extent 
they deliberately ignore Congress admonishment, they are no 
longer engaging in good behavior within the meaning of the 
Constitution and may subject themselves to the ultimate remedy, 
which would be impeachment.'' In other words, we're threatening 
impeachment if we disagree with the Court. That is the 
definition of intimidation.
    Now, I will admit, Mr. Feeney, that I am very upset with 
some court decisions. I am very upset with the arrogance and 
the usurpation of power of the Supreme Court that purported to 
install in office the current President of the United States 
who lost by over a half a million votes and stopped the count, 
stopped the recount, in the State of Florida. I don't propose 
impeaching the justices of the Supreme Court, though some of 
them might deserve it. I was equally disturbed by the actions 
of the former speaker of the Florida House of Representatives 
who proposed at that time that if the count went wrong, if a 
Gore slate of electives were to be seated by the courts after 
completion of a recount, he said we'll take it away from him; 
we'll have the State legislature take away the power to select 
a slate of electives from the people; we'll pass a statute; 
we'll give it to the legislature, and we'll see a Bush slate of 
electives.
    Now, technically that is a problem with our current 
Constitution, because I think the legislature would have had 
the power to do that, and we probably ought to consider 
amending the Constitution to prevent some future legislature 
from doing that, but talk about an arrogance of power and a 
disrespect for democratic, with a small ``D,'' rights and the 
sovereignty of the people, that is far beyond what any court, 
even the Supreme Court of the United States in the Gore v. Bush 
decision, which will rank up there not quite with Dredd Scott, 
but with some other infamous decisions, has ever proposed to 
do.
    Let me ask Professor Jackson the following question: In any 
of the cases that we have talked about today, has a foreign 
source been treated by any court, by the Supreme Court 
especially, as a binding precedent, and did any of these 
decisions turn on an authority from a non-U.S. source, or were 
these citations buttressing the reasoning of the Court from 
other sources?
    Ms. Jackson. In no cases were the foreign or international 
sources in these recent decisions we've been talking about 
treated as binding. Indeed, if you read the entire opinions, 
they occupy very, very small parts of the reasoning. There were 
many other authorities, also not binding, that were referred to 
by the courts in their decisions, including State court 
decisions and on occasion even law review articles written by 
law professors, who much as we might like to be able to bind, 
lack the power to do.
    Mr. Nadler. So they are cited for their logic, but not for 
their binding nature?
    Ms. Jackson. Yes. That is correct.
    Mr. Nadler. And none of these decisions turned on any of 
those citations?
    Ms. Jackson. Not in my judgment, no.
    Mr. Nadler. So this is much ado about nothing in your 
opinion?
    Ms. Jackson. Well, what concerns me is that I think that 
for Congress to say that judges shouldn't know about other laws 
and other legal systems is not conducive to the best----
    Mr. Nadler. So it's worse than much ado about nothing? In 
effect, it's taking--it's making--it's concern about something 
that isn't happening, an undue reliance, because none of these 
decisions have turned on a foreign citation, nor have any been 
treated as binding; but we're talking about perhaps coming up 
with Congress instructing the courts--purporting to instruct 
the courts which, as I said a few minutes ago, I think is 
improper.
    Let me read you a quote from the distinguished Chief 
Justice, the current Chief Justice of the United States, a 
distinguished justice not appointed by a Democratic or liberal 
president, Justice Rehnquist. He wrote the following, and I 
would like to ask your comment: ``When many new constitutional 
courts were created after the Second World War, these courts 
naturally looked to the decisions of the Supreme Court of the 
United States among other sources for developing their own law. 
They cited U.S. Supreme Court decisions. But now that the 
constitutional law is solidly grounded in so many countries, it 
is time that the United States begin looking to the decisions 
of other constitutional courts to aid in their own deliberative 
process.''
    Is the Chief Justice advocating something extra or anti-
constitutional here, or is Justice Rehnquist being intelligent 
as he sometimes is?
    Ms. Jackson. I believe what Chief Justice Rehnquist 
recommended in those remarks, which I believe he made in 1989 
and again to similar effect in 1999, is wise, not at all 
inconsistent with our Constitution, but indicating that we 
might be able to learn things, negative or positive, consistent 
with remarks of Judge Guido Calabrisi in the Second Circuit, 
who in a case a few years ago wrote about looking to learn, not 
to be bound, by other constitutional decisions, especially of 
countries that have modelled their constitutions on ours. Judge 
Calabresi said: ``Wise parents sometimes learn from their 
children.''
    Mr. Chabot. The gentleman is recognized for an additional 
minute.
    Mr. Nadler. Thank you.
    Let me just ask anyone else on the panel if anyone else 
wants to comment on Chief Justice Rehnquist's comment that, in 
effect, he said it is time that the United States begin looking 
to the decisions of other constitutional courts to aid in their 
own deliberative processes, that sometimes we might be able to 
learn, although not to be bound by the opinions of others. Any 
other comment on whether that's an intelligent comment or not? 
Professor?
    Mr. Rabkin. When did he make that statement?
    Mr. Nadler. He made it--I don't know. I think he made it 
1989 or 1999.
    Mr. Rabkin. Yeah. Well, just what I was going to say----
    Mr. Nadler. The quote is from 2004. The citation is 2004, 
but he obviously made it before that.
    Mr. Rabkin. I think the context of this matters. You know, 
if there were just the occasional reference to some French 
court decision and then a quotation from Moellier, we would 
say, well, that's a very learned justice, but the context now 
is there is a very organized, pervasive, systematic campaign to 
say judges in different questions should support each other in 
pursuing similar paths. In that context----
    Mr. Nadler. Would you disagree with Professor Jackson when 
she said in answer to my previous question that in none of the 
cases cited with these foreign citations--none of the cases 
mentioned with these foreign citations--in none of the cases 
cited do these foreign citations bind, in other words, that 
they weren't cited as binding precedent and none of these cases 
turned on them? Do you agree with that?
    Mr. Rabkin. As a description of what's happened up to now, 
yes.
    Mr. Nadler. Thank you.
    Mr. Rabkin. It could change in the future, and that's one 
of the things we are concerned about.
    Mr. Nadler. Hasn't happened yet.
    Mr. Rabkin. Has not yet.
    Mr. Nadler. Thank you.
    Mr. Chabot. The chair recognizes himself for 1 minute out 
of order here. I'd just like to ask the other three panel 
members, the statement was made this is much ado about--the 
subject matter of this hearing is much ado about nothing or 
perhaps worse, would any of the other panel members like to 
comment on that?
    Professor Ramsey.
    Mr. Ramsey. Yeah, I would. I think it's probably correct so 
far to say that these citations of foreign authority haven't 
had a substantial role in decisions that have been made; 
however, I think these things acquire a momentum and that major 
mistakes begin with very small mistakes. I'd like to real 
quickly give an example of a case that I think is very 
important. We were talking about it at the break. It involves 
the juvenile death penalty, that is the execution of persons 
who committed a crime when they were, say, 17 years old.
    This has been something that has been recognized as 
constitutional by the U.S. Supreme Court for many years; 
however, it is a practice that is not widely followed around 
the world. In fact, it's quite unusual, in my understanding of 
it, around the word.
    Following the Lawrence decision in which the citation of 
foreign authority was made, a lower State court took it upon 
itself to decide, and I think not entirely unreasonably, that 
the overwhelming weight of international authority against the 
execution of juvenile offenders called for a re-examination of 
our law which allows the execution of juvenile offenders. That 
case is now pending in front of the United States Supreme 
Court. I would be very interested to see how that case comes 
out. If the Court reverses itself, if it feels obligated by the 
weight of international authority to change its own view not 
long ago stated of our Constitution, then I would say that is 
an example of quite a bit of ado about something, and I would 
recommend everyone keep an eye on that case.
    Mr. Chabot. Thank you. My time has expired.
    The gentleman from Indiana, Mr. Hostettler, is recognized 
for 5 minutes.
    Mr. Hostettler. I thank the Chairman and I thank the 
panelists for your testimony today. It's been very 
enlightening.
    And I appreciate your reference to the Federalists and the 
like and there is the idea of much ado about nothing and the 
fact that there is no problem of separation of powers here, and 
I guess if we do look to the Federalists, to the framers, we 
might suggest that you're probably right, that those--suggest 
that they're probably right. If I can quote Federalist No. 78: 
``Whoever attentively considers that different departments of 
power must perceive that in a government in which they are 
separated from each other, the judiciary is beyond comparison 
the weakest of the three departments of powers. The judiciary 
has no influence over either the sword or the purse, no 
direction either of the strength or of the wealth of the 
society, and can take no active resolution whatever. It may 
truly be said to have neither force nor will, but merely 
judgment.''
    And so when we talk about much ado about nothing and the 
lack of separation of powers, there hasn't anything changed 
fundamentally in our government to allow the Court to have any 
active resolution whatever in any of these decisions that we're 
talking about. Is that not true?
    Ms. Jackson. Is that directed to me?
    Mr. Hostettler. Yes.
    Ms. Jackson. I think the Court is playing the role of 
judicial review that was contemplated at the founding and that 
it can only decide cases or controversies that are properly 
before it.
    Mr. Hostettler. But can take no active resolution whatever, 
and they actually end by saying ``and must ultimately depend 
upon the aid of the executive arm even for the efficacy of its 
judgments?'' So with what we're talking about here, the Supreme 
Court could opine all day long, referring to whatever foreign 
document they'd want to whatsoever, and, in fact, they have no 
means by which to enforce or execute their own judgment. Is 
that not true? And that's why the Judiciary Act of 1789 created 
the U.S. Marshal Service, an agency of the Executive Branch.
    Ms. Jackson. The courts depend upon the executive to 
enforce their judgments, and we have a very valuable, I would 
call it, rule of law tradition that the judgments of the Court 
are respected.
    Mr. Hostettler. But you will have to admit that that is not 
a blanket situation, that that does not happen, for example, 
with Cherokee Indian tribes and the desire by Chief Justice 
Marshall to seat Mr. Marbury and his associates, that that 
suggestion of a blanket enforcement by the Executive with 
regard to these decisions, that doesn't happen except with the 
acquiescence and the positive action of the Executive Branch; 
is that not true?
    Ms. Jackson. I think the United States has a stunningly 
good record of the respect for particular decisions of the 
Supreme Court once they are issued.
    Mr. Hostettler. Right.
    Ms. Jackson. And I think it would be a terrible thing to 
lose that. It is one of the things that distinguishes us from 
many other nations and a very valuable part of our 
constitutional heritage. The Court can only decide cases or 
controversies. Once those are decided within our tradition, the 
parties are bound, and the judgment is to be treated as at 
least resolving that dispute.
    As Congressman Nadler's pointed out earlier, there are 
mechanisms to change the Constitution. They have been rarely 
invoked. Those are the legal mechanisms for change if a line of 
decisions is deemed unacceptable to a majority of the people.
    Mr. Hostettler. You're not familiar with the elimination of 
jurisdiction from the Supreme Court, the power, for example, of 
the purse not to fund the enforcement of decisions by the Court 
and others?
    Ms. Jackson. I am unaware of any part of the Constitution 
that specifically says Congress could refuse to fund decisions 
of the Court, although under the history of the U.S. Court of 
Claims, in fact, it was the case that judgments would be 
entered and sometimes the litigants would have to wait a while 
before Congress appropriated the money; but my understanding is 
that once the Court had finally decided an issue, under our 
system it was really the obligation of other branches to give 
effect to that judgment. And as I said, I think that would be 
an important part of our constitutional tradition that we 
should not lose.
    With respect to Marbury, the judgment of the Court was 
respected, because the judgment of the Court was that it lacked 
jurisdiction to issue any relief. So there was no judgment for 
anybody else in the judgment to enforce.
    I know that there are widely reported stories about the 
inefficacy of judgments issued in the Cherokee Indian cases in 
the early 19th Century, but I think those are generally 
regarded as a very limited and unfortunate, unfortunate, 
exception from our ordinary practice.
    Mr. Hostettler. May I have an additional minute?
    Mr. Chabot. Yes. By unanimous consent, the gentleman is 
granted an additional minute.
    Mr. Hostettler. If I can, Professor Ramsey, I think you 
have most succinctly put the situation as it is before us, and 
your written testimony reflects the dissenting opinion of 
Justice Scalia when you say, ``The selectivity confirms that 
courts are not really being guided by foreign materials in 
their readings of specific texts, but are using foreign 
materials to support decisions of moral and social policy 
reached on other grounds.'' The justice put it this way: ``It 
is clear from this that the Court has taken sides in the 
culture war.''
    So could you speak to the idea that Justice Scalia may have 
right concerns with regard to the future when he talks about 
``State laws against bigamy, same-sex marriage, adult incest, 
prostitution, masturbation, adultery, fornication, bestiality, 
obscenity are likely sustainable only in light of Bowers' 
validation of laws based on moral choices. Every single one of 
these laws is called into question by today's decision?''
    Mr. Ramsey. Well, I think some of those things are not 
widely practiced even in Europe, and so I think--my answer is 
it depends. Some of those practices, I think are perhaps 
somewhat on the nature of hyperbole, because they're probably 
things that would not come before the Court and probably would 
not require looking to international practices, but I think 
some of them are. I think that Justice Scalia has basically got 
it right here that the--that if the Court has an idea, if 
individual justices have an idea, of what they want to do in 
terms of moral and social practices, moral and social policy, 
and they can't find any support for it in U.S. law or in the 
values of Americans, that the use of foreign law gives them a 
whole other area to search for something that can support their 
opinion.
    So I think that's the danger that Justice Scalia sees in 
it, that it opens up the discretion of our court to pick and 
choose among their favored policies. If I could just quickly 
add, I think, actually, there's an additional danger which 
Justice Scalia probably or at least may not agree with me on, 
but it's highlighted by my example of the juvenile death 
penalty, that the Court having spent enough time relying on 
foreign sources, may suddenly find itself in a corner, that 
when foreign sources point unambiguously in one direction, the 
Court may feel compelled to follow them even if the Court left 
to its own devices wouldn't do that. I think that's the issue 
that's on the table in the juvenile death penalty, and I think 
then you would see a situation where the foreign sources were 
truly dispositive as opposed to being used to, as Justice 
Scalia says, buttress opinions arrived at for other reasons.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from Virginia, Mr. Forbes, is recognized for 5 minutes.
    Mr. Forbes. Thank you, Mr. Chairman, and I thank all of you 
for being here.
    Mrs. Jackson, I know that we've asked a lot of questions of 
you and you can fill this room with other professors or 
attorneys who would agree with you. You just happen to be the 
one here today. Since I only have 5 minutes, first of all, just 
the fact when we're talking about much ado about nothing, that 
normally is in the eyes of whoever is making that statement. I 
just cannot for the life of me think that these justices when 
they're quoting and citing these cases and sources, that 
they're either using them for persuasive ability themselves in 
reaching that decision or using them for pervasive ability for 
others to try to adopt their position.
    I would just ask you this: Is there any country in the 
world today which you would be willing to say our courts should 
not look for interpreting our Constitution or our laws, the 
laws of that country?
    Ms. Jackson. Well, as I've tried to say, I think there are 
different kind of uses to be made, and if there are, for 
example, dictatorships that we don't want to be anything like 
and there is an aspect of their law that facilitates the 
dictatorship, I think it's perfectly fine for our justices to 
notice that and to say, as Justice Jackson did in his dissent 
in Youngstown, we do not want to be a place that has a feature 
like that which results in a dictatorship. So I have a hard--I 
think that the uses that can be made are so different in good 
judicial decision-making. I would tend to approach it in that 
way, what is the use, what are you trying to show by it.
    Mr. Forbes. And forgive me for being short in my time, but 
would the answer be that there would be some countries that you 
would say they should not look to for interpretation of our 
laws in the United States?
    Ms. Jackson. There are some countries whose laws will not 
help us understand the positive meaning of our law.
    Mr. Forbes. Let me give you this hypothetical: Suppose we 
have a country who was an enemy of the United States and 
adopted a written purpose that they were going to try to 
undermine the laws of the United States by undermining our 
Constitution. Would you agree with me, then, that we should not 
adopt the laws of that country for interpretive purposes for 
our Constitution and the laws in this country?
    Ms. Jackson. I don't think the Supreme Court adopts foreign 
law when it interprets the U.S. Constitution.
    Mr. Forbes. Would you agree with me that they should not 
utilize that law for interpretive purposes for our laws in the 
United States, be it persuasion for their decision-making or to 
persuade others to follow the decision they have made?
    Ms. Jackson. It is hard for me to imagine a hypothetical 
country that's set up in order to undermine another country. 
I've not seen that in my experience looking at other 
constitutions.
    Certainly there will be legal institutions and laws in the 
world that are not going to have positive persuasive value. 
They may stand as negative precedents for how we should 
adjudicate.
    Mr. Forbes. Who will make that determination?
    Ms. Jackson. The justices who are charged with interpreting 
the law in the course of cases properly within their 
jurisdiction.
    Mr. Forbes. Will it be like an obscenity, they just know it 
when they see it?
    Or maybe one of you would like to respond to that. My big 
concern is that there could very well be countries out there 
who are hostile to this country, and they may not actually 
adopt in writing that practice, but they may have it implied. 
How will our justices know who our enemies are today; will they 
be our enemies today; will they be tomorrow? When the decision 
was decided in that country, were they hostile or not?
    Professor, if you would like to respond.
    Mr. Rabkin. This is not hypothetical. It is not remote. 
It's not implausible. This is where we are right now. One of 
the main purposes of the European Union, as its advocates and 
sponsors have been saying for decades, is to allow Europe to 
stand up to the United States, to allow Europe to 
counterbalance the United States. It is implicitly hostile to 
the United States, and one of the things that it is really set 
on is undermining American sovereignty, because they think an 
independent American State, an independent American nation is 
dangerous and makes it harder for them to put over on the world 
things that they want to put over.
    I think this is exactly to the point, and if I just could 
say it's easy to mock what I've said and make it sound 
hysterical. I'm not hysterical. I'm perfectly calm. I 
understand that we're going to have to live with them and so on 
and so on and so on, but they have an extremely different 
understanding of what constitutions are, of what constitutional 
review, and that goes along with their having this sort of, 
well, we're not exactly really sovereign, but we yield up our 
sovereignty to something that isn't itself sovereign. They like 
running the world in that way, and we stand for the opposite 
principle. We stand for other things too, but at this point, we 
stand for the opposite principle, and I think they are 
absolutely trying to infiltrate into our judicial system this 
idea that our judges need to listen to what their judges say, 
and we should say no to that.
    Mr. Forbes. My time is up, but thank you.
    Mr. Chabot. The gentleman's time has expired.
    Professor Jackson, it's my understanding you have to teach 
a class and you have to leave. We've got two Members, which 
will be 5 minutes each, and then the gentleman from California 
has asked for an additional 2 minutes. So it's like 12 minutes. 
Could you stick around for that long, or do you have to leave?
    Ms. Jackson. Yes, sir, I can. Thank you for your 
consideration.
    Mr. Chabot. Let me move to the gentleman from California 
who has asked for an additional 2 minutes, and he'll be granted 
that at this time.
    Mr. Schiff. Thank you, Mr. Chairman. I appreciate it.
    Professor Rabkin, it's not my desire to mock in my 
comments, but really the language that you use when you talk 
about an organized, systematic, pervasive effort, it sounds 
like an international judicial cabal of some kind, an 
international judicial conspiracy at work. You talk about it 
being subversive. You use words like ``infiltrate,'' and given 
the already inherent hyperbole of the Congress, you're adding 
fuel to the fire.
    Professor Ramsey says that this may not be a huge problem 
now, but there is a momentum in these things, small mistakes 
become magnified. Well, that applies to the Congress too. When 
we make small mistakes, they become magnified. When we 
establish a precedent of breaking down the independence of 
judiciary, it may be in a small form now, and here in this 
resolution, it may be in a much more significantly damaging 
form later.
    I'd like to just conclude my remarks by quoting the Chief 
Justice's year-end report at the end of last year where Justice 
Rehnquist wrote that he wanted to focus on the relationship 
between the Judicial Branch and the Legislative Branch. During 
the last year, he wrote, ``Tt seems the traditional interchange 
between the Congress and the Judiciary broke down when Congress 
enacted what is known as the Protect Act, making some rather 
dramatic changes to the laws governing the Federal sentencing 
process.'' He acknowledges it's well within the legislative 
function to do so, but he points out this act was enacted 
without any consideration of the views of the judiciary. ``It 
is the Congress' job to legislate, but each branch of 
government has a unique perspective, and taking into account 
these diverse perspectives improves the process. Obtaining the 
views of the judiciary before the Protect Act was enacted would 
have given all Members of Congress the benefit of perspective 
they may not have been aware of on this aspect of legislation 
and other aspects that deal with the delicate process judges 
understand well.''
    Finally, he concludes: ``Judges have a perspective on the 
administration of justice that is not necessarily available to 
Members of Congress and the people they represent. Judges have 
again by constitutional design an institutional commitment to 
the independent administration of justice and are able to see 
the consequence of judicial reform proposals that legislative 
sponsors may not be in a position to see. Consultation with the 
Judiciary will improve both the process and the product.''
    And I don't think there's been any consultation with the 
courts on this issue, and I think this is just another 
illustration of what the Chief Justice wrote not 14 years ago 
or 15 years, but, in fact, wrote just a few months ago. I think 
we would all be well advised to take the Chief Justice's 
admonition into mind and work to improve our communication and 
not take gratuitous shots across the bough.
    Mr. Chabot. The gentleman's time has expired, but if the 
professor would like to respond.
    Mr. Rabkin. Yeah. What you quoted there is Rehnquist saying 
don't change the law in ways that will affect the Judiciary 
without consultation. This resolution is not changing the law. 
It is expressing a philosophical viewpoint, and I think the 
philosophical viewpoint of the Congress is not going to change 
because of consultation. The Congress believes what it 
believes, which happens to be what the country believes, and if 
you and the courts believe otherwise, okay; you express 
yourselves.
    Mr. Schiff. And, professor, you think that the combination 
of this effort, the threat of subpoenaing a Federal judge for 
his sentencing records----
    Mr. Rabkin. That's something else. I wasn't testifying on 
that. I don't know about that.
    Mr. Schiff. The cumulative impact, you don't think has 
chilling impact on the independence of the Judiciary?
    Mr. Rabkin. I don't know about the other things, but this 
seems to me extremely sensible, and this is the thing which 
we're testifying about.
    Mr. Chabot. The gentleman's time has expired.
    I'd ask unanimous consent that the gentleman from Virginia, 
Mr. Goodlatte, who is a Member of the overall Judiciary 
Committee be granted 5 minutes to ask questions, and he's 
recognized.
    Mr. Goodlatte. Mr. Chairman, thank you very much. I want to 
thank you and the other Members of the Subcommittee for your 
forbearance in allowing me to testify. This is an issue in 
which I have great interest and was pleased to introduce along 
with my colleague and good friend Congressman Feeney, this 
resolution, and I by no means think this is much ado about 
nothing.
    I would say to the gentleman from California that, quite 
right, there should be great consultation between the Congress 
and the Judiciary on matters that are of mutual concern, and I 
would welcome the opportunity if this Subcommittee or the full 
Committee were to invite Justice Rehnquist and the other 
justices of the court to come down and have a discussion with 
us about these very important issues. I presume that these are 
issues that are not a matter of being much ado about nothing; 
otherwise, a very intelligent member of the Supreme Court like 
Justice Breyer would not have included such surplusage in his 
opinion if he thought it was much ado about nothing. I presume 
that Justice Scalia did not think it was much ado about nothing 
if he felt that it was of such great significance that a 
decision of the Court, which was having great difficulty 
finding anchor in any language in U.S. Constitution or any laws 
passed by the Congress to anchor that decision, would point out 
that reliance was made in interpreting our Constitution upon 
the views and decisions of other courts.
    And I am especially concerned when justices go even further 
as Justice O'Connor went when she stated in a speech last year 
that, ``I suspect that over time, the United States Supreme 
Court will rely increasingly, rely increasingly, on 
international and foreign courts in examining domestic 
issues.''
    So I think the Congress is quite right to catch this at an 
early stage when it is perhaps used in limited fashion by the 
courts, but clearly in such a way that many members of the 
Court--I understand six members of the Court have indicated a 
desire to do this further in the future.
    Let me ask you, Professor McGinnis, you bring up a very 
important point in your testimony that the Constitution is 
unique and special because its authority is derived from the 
people of the United States of America. In your opinion, when 
the courts use foreign laws to interpret the U.S. Constitution, 
does it in effect weaken the authority of the Constitution by 
supplementing the will of the American people for the will of 
the foreign governments?
    Mr. McGinnis. I think over time, it's not so much the 
substitution of the will, but I think it dissolves--it's a 
danger of dissolving the affections that Americans have for 
their own Constitution. Constitutionism has a great problem.
    Who is going to defend the Constitution? Madison tried to 
focus on this. He thought that citizens aren't going to simply 
defend it out of their own interests; they have got to have 
some affection for it. And one of the things that creates 
affection for the Constitution is it's their Constitution, and 
if systematically over time the Supreme Court relies, as you 
quite correctly say that Justice O'Connor suggests, 
increasingly on other law, I think that starts to dissolve 
these crucial bonds.
    So I think that is one of the really long-term dangers of 
the trend that is beginning.
    Mr. Chabot. Well, thank you. And one of the things that 
concerned me, I found striking the language that Congressman 
Hostettler read from Federalist Paper 78 about our Founding 
Fathers' perception of what the power of the Judiciary would 
be, and I think today we would find it equally striking to us 
that they would have such distant and remote view compared to 
the actual power that the Judiciary exercises today. And one of 
the issues that is underlying this resolution and I suspect 
future clashes, if you want to call it that, between the 
Congress and Judiciary is the question of whether the Founding 
Fathers, having taken that view, really placed in our 
Constitution enough checks and balances on this power or 
whether it's simply a failure of the Congress and the Executive 
Branch to act in response to the acquisition of power that has 
taken place on the part of our Judiciary, not to simply 
interpret the laws and fairly resolve disputes between parties, 
which I think they clearly contemplated and which I think every 
Member of this panel would say they clearly contemplated, but 
to take it further, to actually rewrite our laws and 
effectively finding in our Constitution things that the vast 
majority of the American people do not find.
    So I would express my concern and ask any member of the 
panel if they have any thoughts on what measures the Congress 
could take to effectively exercise that system of checks and 
balances that is so clearly contemplated in our Constitution 
against abuse of power. Clearly, we've never removed anybody 
from office for misinterpreting in our view a section of the 
Constitution, and clearly we have never taken the steps that 
have been discussed by others, and perhaps we could, but they 
are very difficult steps.
    Are there other things that we should be looking at to 
check unbridled power on the part of the Court?
    Mr. Chabot. The gentleman's time has expired. The panel, 
any members that would like to address that, can. I would ask 
them if they could please be brief. We've got one more 
questioner and we've got a vote on the floor. So we're going to 
have to leave here shortly. So any of the members who would 
like to address that.
    Professor Ramsey.Need to clarify who's 
speaking. deg.
    Mr. Ramsey. Yes, very quickly, and I think this responds to 
some of the concerns that have been expressed by others. I 
think that the greatest check on the courts is that the courts 
must not only make decisions, but they must explain their 
decisions in rational discourse that is publicly available for 
criticism by all and that the public is, indeed, invited to 
criticize what the Court has said that it is doing.
    Mr. Goodlatte. Just as we are doing today?
    Mr. Ramsey. Yes, exactly, and I think that that's why I 
think that this measure is entirely an appropriate exercise of 
Congress' power and is not a violation of separation of powers 
as some have suggested. When editorial writers, when law 
professors, and when members of other branches of the 
Government take up the things the Supreme Court has written to 
justify their decisions and say this does not seem like an 
adequate justification to us, that is one of the great checks 
in our system we have on courts.
    Mr. Chabot. Any other comments from the panel? Professor?
    Ms. Jackson. I want to express agreement with the 
importance as a check, of the giving of public judgments and 
reasons, which not only Members of Congress can criticize, but 
newspapers and ordinary citizens, and I want to raise a grave 
caution about the idea that the impeachment power ever would be 
used because of disagreement with a decision. Again, removal of 
judges whose decisions the Government doesn't like is a 
characteristic of countries that I don't think we want to move 
our system towards, and the protection of the independence of 
the Judiciary, whether we agree or disagree with their 
decisions, is something I think is very important.
    Mr. Chabot. Thank you.
    The gentleman's time has expired. The last questioner this 
afternoon will be the gentleman from Alabama, Mr. Bachus, who 
is recognized.
    Mr. Bachus. Thank you.
    Let me say that I am enthusiastically for this resolution, 
and I commend the gentleman from Virginia.
    Professor Jackson, one thing that I'm curious about, when I 
talk to my constituents when they talk about this issue, and 
you talk about a foreign law, let's just say a law in Germany, 
none of my constituents elect those legislative bodies. They 
don't have one vote. They don't have one iota of influence in 
that legislative process.
    Isn't that really the essence of democracy? We elect our 
Representatives, our Congressmen, our State legislators to make 
laws for us. The German law is made by Germans, people that 
were elected or appointed by Germans. Isn't that a cause of 
concern to you that our courts would be citing decisions where 
there is no input by our voters? Isn't the vote what this 
country has, our democracy?
    Ms. Jackson. If the Court were treating a foreign law as 
binding, I would agree this raises very serious questions of 
democratic self-governance.
    Mr. Bachus. Well, let me ask you this: Why would the court 
even refer to a law in a decision, a foreign law, ``a foreign 
law?'' Why would it even be in the opinion if they weren't 
focusing on it?
    Ms. Jackson. Well, sometimes the Court, as I mentioned 
earlier, looks at foreign law to say we don't want to be like 
that; we're different from that; we can learn.
    Mr. Bachus. What if they looked at it and----
    Ms. Jackson. If they looked at it and said, ``We protect 
liberty and so does the European Court of Human Rights----''
    Mr. Bachus. But don't we have enough laws here without 
looking at some foreign laws that were formed by people that 
weren't elected, weren't appointed by Americans?
    Ms. Jackson. We do have a lot of law here, and the great 
bulk of the opinion of the Supreme Court in Lawrence v. Texas 
involves discussion of U.S. cases, Federal cases, and also of 
State cases.
    Mr. Bachus. But in Lawrence, you bring up in Lawrence. In 
Lawrence, they reversed what had been a long-standing law. They 
reversed an opinion, and they did so and they cited a foreign 
case. You say it wasn't persuasive. Why did they bring it up if 
they weren't focused on it?
    Ms. Jackson. Well, actually the decision----
    Mr. Bachus. Was it irrelevant?
    Ms. Jackson. No. The decision that they reversed, which was 
Bowers v. Hardwick, in that case, the Chief Justice, one of the 
judges in the majority, had actually referred to what western 
civilization did as part of the basis for his thinking in the 
earlier case to uphold the sodomy laws. So, in part, the 
Lawrence v. Texas decision citation to Europe was to say Bowers 
v. Hardwick misunderstood what western civilization and Europe 
was about, and in that sense, sort of cleaning up the record 
for accuracy, it's seems entirely appropriate.
    Courts refer to a lot of material that is not binding as 
such, but which helps them understood the issue before them.
    Mr. Bachus. But that's my very point. It's influencing 
them, and it shouldn't, and let me say this: If you ask one of 
your students what is the real estate law, what is the issue on 
this that you're teaching, and they came back to you and quoted 
foreign--would you prefer that they quote American law or 
German law?
    Ms. Jackson. They need to know American law. If we're 
training them in American law schools, there's no question.
    Mr. Bachus. Right.
    Ms. Jackson. But if the question is how to decide an 
unsettled issue in the State of New York, for example, it would 
be good lawyering for them to say, ``Well, even though voters 
in Minnesota don't vote in New York, let's see how they did it 
there.''
    Mr. Bachus. Yes.
    Ms. Jackson. Maybe we'll agree. Maybe we'll disagree. But 
that tradition of looking to compare law----
    Mr. Bachus. But that's because they are under the same 
constitution, the U.S. Constitution.
    Ms. Jackson. That's right.
    Mr. Bachus. They're not under some----
    Ms. Jackson. That's correct, but we see the State courts 
doing this all the time when they're interpreting their State 
constitutions.
    Mr. Bachus. Wouldn't you prefer--if you gave a student, you 
told them to respond in 300 words, wouldn't you prefer an all-
American response?
    Ms. Jackson. It depends what the question was. I would 
certainly want my student to know American law.
    Mr. Bachus. Well, I will tell you that the voters elect 100 
percent American legislators. You know, I don't have a 
constituent or a voter that votes German. We're interested in 
American law, and I think it's a terribly dangerous trend. I 
think it undermines our democracy.
    Mr. Chabot. The gentleman's time has expired.
    I want to thank the panel for very enlightening testimony 
here from all four of the members. We appreciate it very much.
    As I had said earlier, all Members would have 5 days to 
supplement their remarks, and the gentleman from Virginia's 
opening statement will be entered for the record.
    If there is no further business to come before the 
Committee, we're adjourned. Thank you very much.
    [Whereupon, at 12:53 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable J. Randy Forbes, a Representative 
                 in Congress From the State of Virginia

    Mr. Chairman, I thank you for holding this hearing today. It is 
important that we examine this issue because with growing frequency, 
the Supreme Court of our country is quietly undermining the sovereignty 
of our nation. Our Court is turning beyond our borders, and beyond the 
laws of our land, to decisions of foreign judicial tribunals when 
deciding American constitutional and statutory cases. Six of the nine 
Supreme Court justices have written or joined opinions that cited 
foreign authorities to justify their decisions. Lower Federal courts 
are beginning to follow this disturbing trend.
    Article VI of the Constitution clearly states that the Constitution 
and federal statutes are the supreme law of the land. As a Member of 
Congress I swore an oath to defend the Constitution and pass laws that 
respect it; each of our Supreme Court justices also raised their right 
hand and swore an oath to defend the Constitution and interpret the law 
in a manner that preserves it.
    In a case focusing on allowable delays of execution (Knight v. 
Florida) Supreme Court Justice Stephen Breyer said he found ``useful'' 
court decisions on the matter in India, Jamaica, and Zimbabwe.
    Will he also find useful Zimbabwe law when interpreting the First 
Amendment? Last month Zimbabwe's highest court upheld a law requiring 
all journalists to be licensed by the government or face criminal 
charges. The law says that any journalist who works without a license 
from the state-appointed Media and Information Commission can be 
prosecuted, and may face up to two years in prison if found guilty. 
Dozens of journalists have been prosecuted under the Act, which has 
also been used to prevent publication of Zimbabwe's only major 
independent daily newspaper, The Daily News.
    If the Supreme Court of the United States is insistent on citing 
foreign laws to justify their activist opinions, at the very least, 
they ought to tell us which foreign laws they like and which ones they 
don't like. Do we adopt the law of countries hostile to the U.S.? Do we 
adopt only the laws of our friends? What about those friendly today and 
hostile tomorrow?
    What will be next? Will the Supreme Court look to the Netherlands 
when deciding our drug laws? In Saudi Arabia laws on marriage say a man 
is legally entitled to up to four wives. Will our justices be 
influenced by those laws?
    The constitutions of India, Jamaica, Germany, and France are 
younger than I am. The Constitution of Zimbabwe is younger than my son. 
Why would we look to the laws of other countries when our Constitution 
is the longest working constitution in the world? Our Constitution was 
adopted by our founding fathers, defended by our mothers and fathers, 
and protected today by our sons and daughters. Our Constitution is 
interpreted and given life by our legislatures and judges either 
appointed or elected by citizens of our country based on the laws of 
our country. Throughout 200 years, it has withstood civil war, world 
war, natural disaster, and political turmoil. It is the fortress that 
protects the freedoms that we all too often take for granted.
    I have joined with Congressman Bob Goodlatte and Congressman Tom 
Feeney to cosponsor the resolution before the Subcommittee today. The 
Reaffirmation of American Independence Resolution expresses the outrage 
of the American people at being made subject to the laws of foreign 
countries--countries where laws are not made through elected 
representatives of the American people, let alone even crafted through 
a democratic process. The resolution will reaffirm what our founding 
fathers made clear: the laws of dictators and tyrants will not govern 
America. With its passage, this resolution will reaffirm our nation's 
dedication to our sovereignty, to our people, and to the principles 
upon which we were founded.

                               __________
Prepared Statement of the Honorable Bob Goodlatte, a Representative in 
                  Congress From the State of Virginia

    Mr. Chairman, thank you for holding this important hearing.
    Recently there has been a deeply disturbing trend in American 
jurisprudence. The Supreme Court, the highest court in the land, has 
begun to look abroad, to international law instead of our own 
Constitution as the basis for its decisions. In fact, six of the 
court's nine justices have either written or joined opinions that cite 
foreign authorities.
    Supreme Court Justice Sandra Day O'Connor recently made a troubling 
prediction that the Supreme Court will rely ``increasingly on 
international and foreign courts in examining domestic issues . . . ,'' 
as opposed to our Constitution, as the basis for its rulings.
    Several western nations have begun to rely upon international 
conventions and U.N. treaties when interpreting their own 
constitutions, which is a frightening prospect, given that most of 
these materials are crafted by bureaucrats and non-governmental 
organizations with virtually no democratic input. The new Supreme Court 
trend to cite these types of foreign authorities is a threat to both 
our nation's sovereignty and the democratic underpinnings of our system 
of government. Our nation's founders were well aware of this danger 
when they drafted the declaration of independence, which declares that 
King George had ``combined to subject us to a jurisdiction foreign to 
our Constitution and unacknowledged by our laws.''
    The Supreme Court's trend is particularly troubling because it 
comes at a time when the court is deciding such fundamental issues as 
the very wording of the Pledge of Allegiance, the meaning of the first 
amendment, and other issues that are uniquely American. Our nation's 
judges, and Supreme Court justices, took an oath to defend and uphold 
the U.S. Constitution--and it is time that Congress remind these 
unelected officials of their sworn duties.
    That is why I joined with my friend and colleague, Congressman Tom 
Feeney, to introduce the Feeney/Goodlatte resolution, which expresses 
the sense of Congress that the Supreme Court should not cite foreign 
authorities in its opinions when it interprets the U.S. Constitution 
and legislation passed by U.S. legislatures. This resolution sends a 
clear message that the Congress is not willing to simply stand idly by 
and see our nation's sovereignty weakened.
    I believe the judicial branch is guaranteed a very high level of 
independence when it operates within the boundaries of the U.S. 
Constitution. However, when judges and justices begin to operate 
outside of those boundaries, Congress must respond. We must be 
steadfast guardians of the freedoms that are protected in the 
Constitution of the United States of America.

                               __________
  Prepared Statement of the Honorable Tom Feeney, a Representative in 
                   Congress From the State of Florida

    Increasingly Federal Judges, including 6 U.S. Supreme Court 
Justices, have expressed disappointment in the Constitution we 
inherited from the framers, and disdain for certain laws enacted by 
democratically elected Representatives. With disturbing frequency, they 
have simply imported law from foreign jurisdictions, looking for more 
agreeable laws or judgments in the approximately 191 recognized 
countries in the world. They champion this practice and fancy 
themselves players on the international scene of jurisprudential 
thought. In their recent speeches, several Justices have referred to 
the ``globalization of human rights'' and assuming a ``comparative 
analysis'' when interpreting our constitution. Is this a proper role 
for our United States judges?
    Mr. Goodlatte, Mr. Ryun, and I hope to have a great civics debate 
on the Constitutionally Appropriate role of judges in our Republic. 
This is why we asked Chairman Chabot to conduct hearings on this 
subject.
    The Framers of the U.S. Constitution certainly understood that 
America had to take its place in the International community. They 
provided a blueprint for how our government should build relations with 
other nations. In Article VI, they provided that treaties made pursuant 
to the U.S. Constitution would be the ``Supreme law of the land.'' 
Congress was given the power to remedy ``offenses against the law of 
nations'' in Article 1, Section 8. In Article II, they gave the 
President the power to make treaties with the advice and consent of the 
Senate. Furthermore, the Founders created our Legislative process as 
the people's body. If our constituents believe that the laws of another 
nation are superior to our own or inform us as to a better approach to 
an issue, they have the right to bring that idea to the attention of 
their respective representative and let the idea go through the 
legislative process.
    The Framers, in our brilliant Constitution, established a fine 
balance to protect American Constitutional Democracy. They carefully 
separated the legislative branch's role from the judicial one, making 
clear that while judges interpret the law and apply it to individual 
cases and controversies; only the legislature is empowered to ``create 
law.'' For example, in explaining the Constitution to the American 
people in Federalist 47, Madison approvingly quotes Montesquieu: ``Were 
the powers of judging joined with the Legislative, the Life and Liberty 
of the Subject would be exposed to the Arbitrary Control, for the Judge 
would then be the Legislator.''
    In the Declaration, Jefferson and the Founders explained the 
rational for war against the King in part by saying, ``He has combined 
with others to subject us to a jurisdiction foreign to our 
Constitution, and unacknowledged by our laws.'' And yet, increasingly 
American judges at the highest levels of the federal judiciary cannot 
resist rationalizing otherwise baseless interpretation of American law 
by reference and incorporation of international law.
    Justice Ginsburg recently quoted the phrase from the Declaration 
that says, ``A decent respect to the opinions of mankind requires that 
they should declare the causes which impel them to the Separation'' as 
justification for the Court's broadening of their judicial horizons to 
include comparative law in their opinions. However, this statement 
unbelievably misses the point our Founders were making when deciding to 
separate from the ``Old World.'' The Declaration declares our 
independence from England. From our inception we chose to separate from 
other nations. This is a part of our heritage. We did this because we 
viewed the way other nations were governed and ruled and decided it was 
not the way America should be governed and ruled. People came to this 
country as the ``New World,'' to leave the traditions and oppression of 
the ``Old World.'' We are a nation unlike any other and our judges 
misunderstand our very foundation when they believe that we need to 
look to the ``international consensus.'' Importing foreign laws 
directly contradicts the spirit of the Declaration of Independence.
    In Federalist 78, Hamilton cited Montesquieu, ``There is no 
liberty, if the power of judging be not separated from the Legislative 
and Executive powers.''
    Lincoln in his Inaugural speech, critiqued the Infamous Dred Scott 
Decision of the US Supreme Court when he said, ``. . . The candid 
citizen must confess that if the policy of the government upon vital 
questions, affecting the whole people is to be irrevocably fixed by 
decisions of the Supreme Court . . . the people will have ceased to be 
their own rulers, having to that extent practically resigned their 
government into the hands of that eminent tribunal. . . .''
    Article VI of the U.S. Constitution clearly provides in the 
Supremacy Clause, ``This Constitution, and the Laws of the United 
States which shall be made in Pursuance thereof; And all Treaties made, 
or which shall be made, under the Authority of the United States, shall 
be the Supreme Law of the Land.''
    It is in this context that I am alarmed that 5 Justices in the 
Lawrence v. Texas case, imported recent foreign law to interpret our 
over 200 year old Constitution.
    In a case focusing on allowable delays of execution (Knight vs. 
Florida) Supreme Court Justice Stephen Breyer said he found ``useful'' 
court decisions on the matter in India, Jamaica, and Zimbabwe.
    Will he also find useful Zimbabwe law when interpreting the First 
Amendment? As Congressman Randy Forbes points out, ``Last month 
Zimbabwe's highest court upheld a law requiring all journalists to be 
licensed by the government or face criminal charges. The law says that 
any journalist who works without a license from the state-appointed 
Media and Information Commission can be prosecuted, and may face up to 
two years in prison if found guilty. Dozens of journalists have been 
prosecuted under the Act, which has also been used to prevent 
publication of Zimbabwe's only major independent daily newspaper, The 
Daily News.''
    Justice Sandra Day O'Connor, while she did not join in the majority 
reasoning of Lawrence, said in a recent speech ``I suspect that over 
time [the U.S. Supreme Court] will rely increasingly . . . on 
international and foreign courts in examining domestic issues.'' 
According to the Atlanta Journal-Constitution, Justice O'Connor also 
stated that the U.S. judiciary should pay even more attention to 
international court decisions than it already does.
    Justice Breyer declared that ``comparative analysis emphatically is 
relevant to the task of interpreting constitutions and enforcing human 
rights.'' He then concluded that nothing could be ``more exciting for 
an academic, practitioner, or judge than the global legal enterprise 
that is now upon us?'' In conclusion he quoted Wordsworth's poem on the 
French Revolution, hoping it will ``still ring true,'' when Wordsworth 
wrote, ``Bliss was it that dawn to be alive but to be young was very 
heaven.'' My recollection is that the French Revolution produced little 
``Liberte,'' but much bloodletting.
    In a speech by Justice Ginsburg, August 2, 2003 to the American 
Constitution Society entitled ``Looking beyond our borders: The Value 
of a Comparative Perspective in Constitutional Adjudication,'' she 
derided as outdated the Historical Jurisprudential view that reviewing 
the founding fathers references to foreign systems was useful in 
writing our Constitution, but contemporary foreign laws or 
constitutions is irrelevant to interpreting our own.
    Justice Ginsburg approvingly cited cases where the U.S. Supreme 
Court Majority cited ``the world community'' to support its 
interpretation of the Constitution.
    In acknowledging our great traditional jurisprudence she said that 
``hardly means we should rest content with our current jurisprudence 
and have little to learn from others. . . .''
    She had two suggestions. One, we need to have more ``dynamism with 
which we interpret our Constitution.'' I ask, what does this mean? 
Apparently, Madison and the framers were insufficiently ``dynamic'' for 
Justice Ginsburg. Her second suggestion was that we need to have more 
``extraterritorial application of fundamental rights.'' This sort of 
universal Jurisdictions have led Courts of other Countries to entertain 
criminal indictments as war crimes against President Bush I, Tony 
Blair, Colin Powell, and Wesley Clark, among others.
    She concluded by bragging that our ``island'' or ``lone ranger'' 
mentality is beginning to change. She does not say what Constitutional 
amendment process, or what legislatively enacted law by elected 
Representatives permits this judicially imposed Constitutional 
transformation; Only that ``Our Justices'' are becoming more open to 
comparative and international law perspectives. Justice Breyer echoed 
the same position in a speech to the American Society of International 
Law when he said, ``. . . [W]e find an increasing number of issues, 
including constitutional issues, where the decisions of foreign courts 
help by offering points of comparison. This change reflects the 
'globalization' of human rights. . . .''
    Finally, I disagree with these Justices' newly created approach to 
interpreting American domestic law because if our Judges create law on 
Constitutional rights by use of foreign laws, they violate the 
Constitution many ways, including:

          Article I--placing lawmaking power solely in Congress

          Article II--Providing Presidential power to veto law

          Article II--Providing the President power to make 
        treaties and the Senate the power to Advice and Consent

          Article IV--Guaranteeing all Americans a Republican 
        form of Government (meaning they get to elect their lawmakers)

          Article V--Proper way to amend our constitution

          Article VI--The Supremacy Clause of the U.S. 
        Constitution

    Additionally, the civil rights lose the ability to control the laws 
we are governed by casting their vote for their elected 
representatives, who make laws. They have NO vote when laws are made by 
judges who judicially import law.
    As Professor Jeremy Rabkin stated in his book, ``Sovereignty 
Matters,'' Constitutionalism is about legal boundaries. Because the 
United States is fully sovereign, it can determine for itself what its 
Constitution will require. And the Constitution necessarily requires 
that sovereignty be safeguarded so that the Constitution itself can be 
secure.'' Judges take an oath to protect and defend the Constitution, 
not to protect and defend international law or the laws of Canada or 
India. They have a duty to ensure our nation's sovereignty is 
protected.
    As the great statesman Daniel Webster famously said, ``Hold on, my 
friends, to the Constitution and to the Republic for which it stands. 
Miracles do not cluster and what has happened once in 6,000 years, may 
not happen again. Hold on to the Constitution, for if the American 
Constitution should fail, there will be anarchy throughout the world.''

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