[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]





                    JUDICIAL RELIANCE ON FOREIGN LAW

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           DECEMBER 14, 2011

                               __________

                           Serial No. 112-73

                               __________

         Printed for the use of the Committee on the Judiciary











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


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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     Virginia

                     Paul B. Taylor, Chief Counsel

                David Lachmann, Minority Staff Director









                            C O N T E N T S

                              ----------                              

                           DECEMBER 14, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution...................................................     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     4

                               WITNESSES

Andrew M. Grossman, Visiting Legal Fellow, The Heritage 
  Foundation
  Oral Testimony.................................................    10
  Prepared Statement.............................................    13
David Fontana, Associate Professor of Law, The George Washington 
  University Law School
  Oral Testimony.................................................    27
  Prepared Statement.............................................    29
Jeremy Rabkin, Professor of Law, George Mason University School 
  of Law
  Oral Testimony.................................................    42
  Prepared Statement.............................................    44

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution...............     6
Prepared Statement of the Honorable Lamar Smith, a Representative 
  in Congress from the State of Texas, and Chairman, Committee on 
  the Judiciary..................................................     7
Prepared Statement of the Honorable Sandy Adams, a Representative 
  in Congress from the State of Florida, and Chairman, Committee 
  on the Judiciary, and Member, Subcommittee on the Constitution.     8

                                APPENDIX
               Material Submitted for the Hearing Record

Material Submitted by the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Ranking Member, Subcommittee on the Constitution
    Article from Legal Affairs...................................    68
    Article from the Harvard International Law Journal...........    73
    Article from the American Constitution Society for Law and 
      Policy.....................................................    98

 
                    JUDICIAL RELIANCE ON FOREIGN LAW

                              ----------                              


                      WEDNESDAY, DECEMBER 14, 2011

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:10 a.m., in 
room 2141, Rayburn Office Building, the Honorable Trent Franks 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Smith, King, Nadler, 
Scott, and Quigley.
    Staff present: (Majority) Holt Lackey, Counsel; Sarah 
Vance, Clerk; (Minority) Heather Sawyer, Counsel; and Veronica 
Eligan, Professional Staff Member.
    Also Present: Representative Adams.
    Mr. Franks. Well, good morning, and welcome to this 
Constitution Subcommittee hearing on ``Judicial Reliance on 
Foreign Law.''
    Without objection, the Chair is authorized to declare a 
recess of the Committee at any time. And I want to extend our 
welcome to Mrs. Adams, the gentlelady from Florida, for being 
with us this morning as well.
    Today the Subcommittee renews inquiry into a topic we first 
explored over 7 years ago, the reliance on foreign law by 
American courts when interpreting American law. Now, as then, 
modern foreign law cannot tell us anything relevant about the 
original meaning of our Constitution. But since this 
Subcommittee's last hearing in 2004, the trend toward the 
internationalization of American constitutional law has only 
accelerated.
    In two cases, the Supreme Court expanded the rights of 
juvenile felons based in part on how other countries punish 
juvenile offenders. In the 2005 Roper case, the Court reversed 
the death penalty of a 17-year-old Missouri murderer, who 
plotted and executed a plan to break into an innocent woman's 
home, bind her, wrap her entire face in duct tape, drive her to 
a bridge, and throw her into the river.
    In holding that no offender under 18 should ever be subject 
to capital punishment, no matter how heinous the crime, the 
Court relied on international opinion and specifically the UN 
Convention on the Rights of the Child, a treaty the that United 
States has never ratified.
    Last year, the Court extended this holding and, again, 
cited international opinion and the unratified Convention on 
the Rights of the Child to find that ``the standards of 
American society have evolved such that'' life without parole 
is now cruel and unusual punishment for even the worst 
juvenile, non-homicide defendants.
    The Court's decision was clearly more concerned with global 
than American standards of decency, because at the time of the 
decision, 37 States, the District of Columbia, and the Federal 
criminal courts all allowed life sentences for some teenage 
felons.
    This term, the Court will hear two cases that present the 
question of whether a State may impose life without parole on a 
juvenile who commits capital murder. Again, global practice and 
American practice on this question differ. The real question 
will be whether Americans or ``the global community'' decides 
what violates the Eighth Amendment.
    When the Committee last visited this issue, reliance on 
foreign law had only begun to crop up in a few majority 
opinions. Since that time, it has become a standard feature of 
the current Court's majority and their Eighth Amendment 
jurisprudence. The transnational approach to constitutional law 
has thus moved from academic theory, to minority judicial 
philosophy, to now commanding majority support on the Court in 
many cases.
    President Obama's appointments to the Supreme Court are 
likely to solidify this trend toward reliance on foreign law. 
In a speech to the ACLU of Puerto Rico, Justice Sotomayor said 
that ``International law and foreign law will be very important 
in the decision of how to think about the unsettled issues in 
our own legal system,'' particularly ``as a source of ideas, 
informing our understanding of our own constitutional rights.''
    Despite a confirmation hearing conversion in which she 
professed that ``American law does not permit the use of 
foreign law or international to interpret the Constitution,'' 
Justice Sotomayor, once on the bench, joined the majority 
opinion using foreign law in Graham v. Florida.
    Disturbingly, there is reason to believe that the current 
Administration wants to advance transnational law beyond courts 
and into the policy arena. Law professors Harold Koh and Anne-
Marie Slaughter were both given senior positions in the State 
Department. Koh is a self-described transnationalist who 
strongly advocates the integration of international standards 
into American law. Slaughter has advocated for global 
governance based on coordination between national courts on 
issues such as human rights. Predictably, State Department 
policy has followed the transnational views of the Department's 
personnel.
    The Administration has increased American engagement with 
organizations like the Human Rights Council and the 
International Criminal Court that seek to internationalize 
various legal issues.
    This march toward transnationalism must end. America's 
independence and democracy have been hard won and preserved by 
the sacrifice of generations of patriots going back to 
Lexington and Concord. The United States Constitution, with its 
Federal structure seen in the checks and balances, protection 
of individual rights, and commitment to representative 
democracy, is the greatest system for making wise and just laws 
that the world has ever known. The Constitution and laws of the 
United States and the several States are sufficient. We do not 
need to go abroad to download legal rules from other countries.
    At its core, the issue is whether Americans will remain a 
sovereign, self-governing people or whether we will be governed 
by an elite caste of judges, imposing rules based on the 
supposed preferences of the so-called international community. 
In the words of Justice Scalia, ``I do not believe that the 
meaning of our Constitution should be determined by the 
subjective views of five members of the Supreme Court and like-
minded foreigners.'' I do not know how it could be said better.
    And with that, I yield now to the Ranking Member of the 
Subcommittee, Mr. Nadler, for his opening statement?
    Mr. Nadler. Thank you, Mr. Chairman.
    We have been here before. In 2004, my Republican colleagues 
held a hearing on this issue to rail against the Supreme 
Court's decisions in Lawrence v. Texas and Atkins v. Virginia. 
Then, as now, they claimed that these decisions represented an 
alarming new trend of judicial reliance on foreign law, and 
argued that Congress needs to curtail this practice. But there 
is nothing new and nothing alarming about justices educating 
themselves about the laws and practices of other nations.
    In 1804, for example, Chief Justice John Marshall wrote in 
Murray v. Schooner Charming Betsy--I assume that is the name of 
a ship; interesting name--that acts of Congress ``ought never 
to be construed to violate the law of nations if any other 
possible construction'' exists.
    In the unfortunate, and now infamous, 1857 Dred Scott 
decision, the majority cited to discriminatory practices of 
European nations that had existed at the time of this Nation's 
founding, while the dissent referenced then contemporary 
European practices and international law.
    We may dislike or disagree with the underlying decisions in 
these or other cases, but they undoubtedly demonstrate that 
judicial reference to foreign law is not a new phenomenon.
    Not only is this not a new practice, it also fails to alarm 
my Republican colleagues, unless the Court issues an opinion 
with which they disagree. After all, the Supreme Court majority 
in Bowers v. Hardwick in 1986 upheld laws criminalizing same-
sex sodomy by, among other things, concluding that such 
prohibitions have ``ancient roots.'' The sources cited for that 
conclusion references the practice of ecclesiastical courts in 
ancient Roman law, the English Reformation, and Blackstone. 
Where was the congressional outcry from my colleagues in 1986? 
It was non-existent until the Supreme Court in Lawrence had the 
audacity to test the Bowers Court's assertion by, shockingly 
enough, looking to the laws and practices in England and 
elsewhere to show that Bowers was wrong in its citation of 
foreign law.
    The only thing that explains the different treatment of 
reference to foreign law in Bowers and in Lawrence is the 
ultimate outcome, not the means of getting there.
    None of us can force the courts to rule our way in every 
case, nor should we be able to do so. That is the blessing and 
burden of our constitutional system, which creates and values 
an independent judiciary. Efforts to attack that independence, 
as exhibited in H.R. 973, the bill introduced by our colleague 
from Florida, Ms. Adams, that would ban courts from ``deciding 
any issue on the authority of foreign law,'' should trouble all 
of us.
    I suppose it is possible that H.R. 973 and like efforts are 
not intended to reach a judge's references to foreign law as a 
non-binding, but relevant, resource, as was the case in 
Lawrence, and in Atkins v. Virginia, and in Roper v. Simmons, 
two additional cases often cited by those who criticize 
judicial reliance on foreign law. But Representative Adams' use 
of these cases to explain the need for her bill in a March 2011 
opinion piece indicates otherwise.
    Of course, in addition to instances where a judge may look 
to foreign law as non-binding but informative, courts sometimes 
must consider and be bound by foreign law in reaching a 
decision. For example, courts sometimes resolve contract claims 
based on choice of law provisions through which the parties 
agree to have the contract interpreted under the laws of 
another country, or, as is sometimes the case, for example, in 
prenuptial agreements or with internal church disputes, by 
reference to religious law.
    What might a proposal like Ms. Adams' mean for a 
corporation doing business internationally, and, for that 
matter, for religious liberty? And what sources would be off 
limits to judges who, by virtue of the supremacy clause of the 
Constitution, Article VI, Clause II, are bound to interpret and 
enforce our treaty obligations? These examples illustrate that 
while this debate might be dismissed as ``much ado about 
nothing,'' a reference to a foreign comedy that, at least for 
today, I remain free to make, the proposed solution poses 
significant and potentially unintended dangers and 
consequences.
    Since the founding of or constitutional system, judges have 
used many sources to test claims made by litigants and to 
assess the potential impact of possible rulings. These sources 
include law review articles, social science research, and the 
laws and decisions of States, other Federal circuits, and 
sometimes other countries.
    Congress should not be in the business of telling the 
courts what tools they get to use when interpreting our laws. 
On this point, even Justice Scalia, one of the current Court's 
most outspoken critics when his colleagues reference foreign 
law, agrees. Speaking in 2006 to an audience that included 
Members of Congress, Justice Scalia explained that ``As much as 
I think that it is improper to use foreign law to determine the 
meaning of the Constitution, I don't think it is any of 
[Congress'] business . . . If you can tell us not to use 
foreign laws, you can tell us not to use certain principles of 
logic.''
    It is nonsensical to argue that our judges should be less, 
not more, educated, and that they must blind themselves to 
certain resources that might help them to reach a fully 
informed judgment. The notion that the wisdom to be gained from 
looking at the laws and practices of other nations is an evil 
to be avoided, not even on a par with looking at a law review 
article written by a professor or any other source that a judge 
freely may consult, is ridiculous.
    I yield back the balance of my time.
    Mr. Franks. And I thank the gentleman. And I now recognize 
the distinguished Chairman of the full Committee, Mr. Smith, 
for his opening statement.
    Mr. Smith. Thank you, Mr. Chairman. The accelerating trend 
of American judges citing and relying on foreign law threatens 
our dedication to government of the people, by the people, and 
for the American people.
    Two hundred and thirty-five years ago, America declared its 
independence from Great Britain. America was founded on the 
self-evident truth that governments derive their just powers 
from the consent of the governed. British rule denied Americans 
the right to make their own laws, a main reason for the 
Revolution. One of the Declaration's specific indictments was 
that King George II had subjected the colonists to ``a 
jurisdiction foreign to our Constitution and unacknowledged by 
our laws.''
    Article VI of the Constitution 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.
    Our republic was founded on the principle that law that 
governs America should be made by Americans, and throughout our 
history, we have protected this heritage of self-government.
    Unfortunately, in recent decades, some courts have 
increasingly relied on foreign sources of law to interpret the 
meaning of the American Constitution. Reliance on foreign law 
exacerbates judicial activism and empowers judges to impose 
their own policy preferences from the bench. Judges who rely on 
foreign law can pick and choose the sources of foreign law that 
reinforce their own personal or political biases.
    Foreign law tells us nothing about the original meaning of 
the American Constitution and laws. For example, decisions by 
courts in Strasburg interpreting the European Convention on 
Human Rights, courts in Tehran interpreting Sharia law, or 
courts in Beijing applying Chinese law, should have no effect 
on how American courts interpret the Constitution.
    Citing foreign law undermines democracy and self-
government. The American people have no control over foreign 
law. If we are to continue to govern ourselves, then foreign 
law should have no control over us. As Justice Scalia has 
stated, ``Reliance on foreign law to strike down American laws 
renders the views of our own citizens essentially irrelevant.''
    Our system of government is based on the idea that 
Americans should make their own laws through the democratic 
process. This has made us the strongest, most prosperous Nation 
in the world. Our courts should affirm this American democratic 
tradition, not abandon it in favor of the views of the so-
called international community. This is especially true when 
many in the international community do not share the same 
commitment to freedom, justice, and equality that are enshrined 
in the American Constitution. If we dilute these constitutional 
guarantees with foreign legal concepts, we weaken our republic.
    I appreciate the Constitution Subcommittee holding this 
hearing today, and I thank Congresswoman Sandy Adams of Florida 
for requesting this hearing, and look forward to working with 
her, Subcommittee Chairman Franks, and the other Members of 
this Committee who have led the effort to protect the American 
legal system from the undue influence of foreign law.
    Thank you, Mr. Chairman. I yield back.
    Mr. Franks. And I certainly thank the gentleman. And 
without objection, the others Members' opening statements will 
be made part of the record.
    [The prepared statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
 Congress from the State of New York, and Ranking Member, Subcommittee 
                          on the Constitution
    Thank you, Mr. Chairman.
    We've been here before. In 2004, my Republican colleagues held a 
hearing on this issue to rail against the Supreme Court's decisions in 
Lawrence v. Texas and Atkins v. Virginia. Then, as now, they claimed 
that these decisions represented an ``alarming new trend'' of judicial 
reliance on ``foreign'' law and argued that Congress needs to curtail 
this practice.
    But there is nothing new and nothing alarming about judges 
educating themselves about the laws and practice of other nations. In 
1804, for example, Chief Justice John Marshall wrote in Murray v. 
Schooner Charming Betsy that acts of Congress ``ought never to be 
construed to violate the law of nations if any other possible 
construction'' exists. In the unfortunate and now-infamous 1857 Dred 
Scott decision, the majority cited to discriminatory practices of 
European nations that had existed at the time of this nation's founding 
while the dissent referenced contemporary European practices and 
international law. We may dislike or disagree with the underlying 
decisions in these or other cases, but they undoubtedly demonstrate 
that judicial reference to ``foreign law'' is not a new phenomenon.
    Not only is this not a new practice, it also fails to alarm my 
Republican colleagues unless the Court issues an opinion with which 
they disagree. After all, the Supreme Court majority in Bowers v. 
Hardwick upheld laws criminalizing same-sex sodomy by, among other 
things, concluding that such prohibitions have ``ancient roots.'' The 
source cited for that conclusion references the practice of 
ecclesiastical courts in ancient Roman law, the English Reformation, 
and Blackstone.
    Where was the congressional outcry from my colleagues in 1986? It 
was non-existent until the Supreme Court in Lawrence had the audacity 
to test the Bowers' Court's assertion by, shockingly enough, looking to 
the laws and practices in England and elsewhere to show that Bowers was 
wrong in its citation of foreign law. The only thing that explains the 
different treatment of reference to ``foreign law'' in Bowers and in 
Lawrence is the ultimate outcome, not the means of getting there.
    None of us can force the courts to rule our way in every case, nor 
should we be able to do so. That is the blessing and burden of our 
constitutional system, which creates and values an independent 
judiciary. Efforts to attack that independence--as exhibited in H.R. 
973, the bill introduced by our colleague from Florida, Ms. Adams, that 
would ban courts from ``decid[ing] any issue . . . on the authority of 
foreign law''--should trouble all of us.
    I suppose it's possible that H.R. 973 and like efforts are not 
intended to reach a judge's references to ``foreign law'' as a non-
binding but relevant resource--as was the case in Lawrence and in 
Atkins v. Virginia and in Roper v. Simmons, two additional cases often 
cited by those who criticize judicial reliance on foreign law. But 
Representative Adams' use of these cases to explain the need for her 
bill in a March 2011 opinion piece indicates otherwise.
    Of course, in addition to instances where a judge may look to 
foreign law as non-binding but informative, courts sometimes must 
consider and are bound by foreign law in reaching a decision.
    For example, courts sometimes resolve contract claims based on 
choice-of-law provisions, through which the parties agree to have the 
contract interpreted under the laws of another country or--as is 
sometimes the case, for example, in pre-nuptial agreements or with 
internal church disputes--by reference to religious law. What might a 
proposal like Ms. Adams' mean for a corporation doing business 
internationally and for religious liberty?
    And what sources would be off-limits to judges who, by virtue of 
the Supremacy Clause of our Constitution (Article VI, Clause 2), are 
bound to interpret and enforce our treaty obligations?
    These examples illustrate that, while this debate might be 
dismissed as ``much ado about nothing''--a reference to a foreign 
comedy that, at least for today, I remain free to make--the proposed 
solution poses significant and potentially unintended dangers and 
consequences.
    Since the founding of our constitutional system, judges have used 
many sources to test claims made by litigants and assess the potential 
impact of possible rulings. These sources include law review articles, 
social science research, and the laws and decisions of states, other 
federal circuits, and sometimes other countries. Congress should not be 
in the business of telling the courts what tools they get to use when 
interpreting our laws.
    On this point, even Justice Scalia--one of the current Court's most 
outspoken critics when his colleagues reference foreign law--agrees. 
Speaking in 2006 to an audience that included Members of Congress, 
Justice Scalia explained that ``as much as I think that it is improper 
to use foreign law to determine the meaning of the Constitution, I 
don't think it's any of [Congress's] business . . . if you can tell us 
not to use foreign laws, you can tell us not to use certain principles 
of logic.''
    It is nonsensical to argue that our judges should be less, not 
more, educated and that they must blind themselves to certain resources 
that might help them reach a fully informed judgment. The notion that 
the wisdom to be gained from the laws and practices of other nations is 
an evil to be avoided, not even on par with a law review article 
written by a professor or any other source that a judge freely may 
consult, is ridiculous.
    I yield back the balance of my time.
                               __________

    [The prepared statement of Mr. Smith follows:]
 Prepared Statement of the Honorable Lamar Smith, a Representative in 
   Congress from the State of Texas, and Chairman, Committee on the 
                               Judiciary
    The accelerating trend of American judges to cite and rely on 
foreign law threatens our dedication to government of the people, by 
the people and for the American people.
    Two-hundred and thirty-five years ago, America declared its 
independence from Great Britain. America was founded on the self-
evident truth that governments derive ``their just powers from the 
consent of the governed.''
    British rule denied Americans the right to make their own laws, 
which was one of the main reasons for the revolution. One of the 
Declaration's specific indictments was that King George II had 
subjected the colonists to ``a jurisdiction foreign to our 
constitution, and unacknowledged by our laws.''
    Article VI of the Constitution 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.''
    Our Republic was founded on the principle that the law that governs 
America should be made by Americans. And throughout our history, we 
have protected this heritage of self government.
    Unfortunately, in recent decades some courts have increasingly 
relied on foreign sources of law to interpret the meaning of the 
American Constitution.
    Reliance on foreign law exacerbates judicial activism and empowers 
judges to impose their own policy preferences from the bench. Judges 
who rely on foreign law can pick and choose the sources of foreign law 
that reinforce their own personal or political biases.
    Foreign law tells us nothing about the original meaning of the 
American constitution and laws. For example, decisions by courts in 
Strasbourg interpreting the European Convention on Human Rights, courts 
in Tehran interpreting Sharia law or courts in Beijing applying Chinese 
law should have no effect on how American courts interpret the 
Constitution.
    Citing foreign law undermines democracy and self-government. The 
American people have no control over foreign law. If we are to continue 
to govern ourselves, then foreign law should have no control over us.
    As Justice Scalia has stated, reliance on foreign law to strike 
down American laws renders ``the views of our own citizens essentially 
irrelevant.''
    Our system of government is based on the idea that Americans should 
make their own laws through the Democratic process. This has made us 
the strongest, most prosperous nation in the world.
    Our courts should affirm this American democratic tradition, not 
abandon it in favor of the views of the so-called ``international 
community.'' This is especially true when many in the ``international 
community'' do not share the same commitment to freedom, justice and 
equality that are enshrined in the American Constitution.
    If we dilute these constitutional guarantees with foreign legal 
concepts, we weaken our Republic.
    I appreciate the Constitution Subcommittee holding this hearing 
today. I thank Congresswoman Sandy Adams of Florida for requesting this 
hearing and look forward to working with her, Subcommittee Chairman 
Franks and the other members of this Committee who have led the effort 
to protect the American legal system from the undue influence of 
foreign law.
                               __________

    [The prepared statement of Ms. Adams follows:]
    
    
    
                               __________

    Mr. Franks. I would like to welcome our witnesses here this 
morning. And our first witness is Mr. Andrew Grossman. He is a 
visiting legal fellow in the Heritage Foundation's Center for 
Legal and Judicial Studies, where he researches and writes 
about constitutional issues. In addition to his work at 
Heritage, Mr. Grossman is a litigator in the Washington office 
of the global law firm Baker & Hostetler.
    Our second witness, Professor David Fontana, is a professor 
at the George Washington University Law School where his 
research focuses on constitutional law, comparative 
constitutional law, and the legal profession. Before coming to 
GW, Professor Fontana clerked for the Honorable Dorothy W. 
Nelson of the U.S. Circuit of Appeals for the Ninth Circuit.
    Our third and final witness, Professor Jeremy Rabkin, is on 
the faculty at George Mason University School of Law, where he 
joined in 2007 after 27 years at Cornell University. His 
scholarship and several of his books focuses on issues of 
national sovereignty. He holds a Ph.D. from the Department of 
Government at Harvard University, and currently serves on the 
board of directors of the United States Institute of Peace.
    And we want to, again, welcome all of you here today. And 
each of the witnesses' written statements will be entered into 
the record in its entirety. I ask that each witness summarize 
his testimony in 5 minutes or less. To help you stay within 
that time, there is a timing light on your table. When the 
light switches from green to yellow, you will have 1 minute to 
conclude your testimony. When the light turns red, it signals 
that the witness' 5 minutes have expired.
    And before I recognize the witnesses, it is the tradition 
of this Subcommittee that they be sworn. So, if you would 
please stand.
    [Witnesses sworn.]
    Mr. Franks. Please be seated. And I thank you, and I 
recognize our first witness, Mr. Grossman, for 5 minutes.

  TESTIMONY OF ANDREW M. GROSSMAN, VISITING LEGAL FELLOW, THE 
                      HERITAGE FOUNDATION

    Mr. Grossman. Mr. Chairman, Ranking Member Nadler, Members 
of the Subcommittee, thank you for holding this hearing today.
    My written testimony presents a taxonomy of the 
circumstances in which it is appropriate and inappropriate for 
U.S. Federal courts to apply foreign law, and describes the 
enormous challenges that courts face in attempting to even 
ascertain the substance of foreign law, much less to apply it 
correctly. But in the interest of brevity, I will skip the 
whole taxonomy this morning and make just three points.
    First, the present practices of foreign nations, 
international organizations, including laws and treaties, are 
simply irrelevant to interpreting and applying the United 
States Constitution. The Constitution should be interpreted 
according to its original meaning. It is contrary to the 
Constitution's own supremacy clause for the courts to elevate 
foreign statutes or court decisions to the supreme law of the 
land, superior to U.S. statutory law, and even the 
constitutional text. It is perverse.
    Reliance on foreign laws is also anti-democratic. Judge 
Richard Posner has put this point particularly well. He wrote, 
``Judges in foreign countries do not have the slightest 
democratic legitimacy in the U.S. context. The votes of foreign 
electorates, the judicial conformation procedures, if any, in 
foreign nations, are not events in our democracy. To cite 
foreign decisions in order to establish an international 
consensus that should have weight with U.S. courts is like 
subjecting legislation enacted by Congress to review by the 
United Nations' General Assembly.''
    Another problem is that the Supreme Court is simply 
incompetent at determining what it calls the climate of 
international opinion. The Court's typical approach to applying 
foreign law has been to count the noses of foreign nations on 
any particular issue. It does this poorly. For example, capital 
punishment is popular in many countries where political actors 
have actually abolished it. Another example, Supreme Court 
justices have taken at face value self-serving claims by the 
Soviet Union and Zimbabwe concerning their penal system's 
humane practices. This naivete does not inspire confidence.
    Finally, one cannot help but wonder whether the decisive 
factor governing the citation of foreign law is simply, as the 
Supreme Court often puts it, ``our own judgment.'' What Justice 
Scalia has said about the citations of legislative history 
applies equally here. The trick is to look over the heads of 
the crowd and pick out your friends.
    When the Court does cite foreign law, it picks and chooses 
its friends, mostly in old Europe. The Court also picks and 
chooses those instances in which it considers foreign law at 
all. In areas where foreign law is more conservative than U.S. 
constitutional law, such as separation of church and State and 
the admission of illegally obtained evidence, foreign law is 
apparently irrelevant. The reason may be that it would not help 
reach the justices' preferred outcome.
    My second point is that the use of foreign law undermines 
federalism. In every case but one where the Court has decreed 
that a particular punishment is constitutionally impermissible, 
the losing party has been a State. To be clear, in each of 
these cases, the Supreme Court struck down a State law or 
practice in part because it conflicted not with any Federal 
statute or explicit limitation on State power in the 
Constitution, but because it conflicted with foreign laws and 
practices that, according to the Court, somehow have the force 
and effect of Federal constitutional law.
    Some justices even consider foreign law to be directly 
relevant to interpreting the 10th Amendment's limitations on 
Federal power. In Prince v. United States, the Supreme Court 
held that the Federal Government could not commandeer State 
officials to enforce Federal gun laws. Justice Breyer dissented 
on the grounds that they do things differently in Germany and 
Switzerland. But, of course, we do things differently here. 
That was the point of our written Constitution.
    International law, in the form of expansive treaties, 
presents a similar threat to federalism. In a case that is 
pending now in the Third Circuit, the Federal Government claims 
that the treaty clause power is not subject to the limitations 
of the 10th Amendment. Indeed, some clever law professors, have 
suggested that Congress could reenact the gun control 
provisions struck down in Prince and Lopez by tying them to one 
or another broadly worded treaty. This is a radical position, 
one that reaches far beyond the Supreme Court's holding in 
Missouri v. Holland, and yet it is the position of the Obama 
Administration.
    Frankly, it is not inconceivable that foreign and 
international law will play some role in the Supreme Court's 
consideration of currently pending challenges to the Patient 
Protection and Affordable Care Act's individual mandate. 
European countries, after all, are saddled with national health 
care systems, and some law professors read the UN Universal 
Declaration of Human Rights to make medical care a human right 
that the United States government has an obligation to enforce 
on its citizens. I will bet a couple of justices would go along 
with this.
    My third point is that it is not always judges that are to 
blame for these problems. Sometimes it is Congress that 
mandates the use of foreign and international laws. Two quick 
examples. The alien tort statute gives Federal courts 
jurisdiction over cases alleging violation of the law of 
nations, and the Lacey Act criminalizes violation of the laws 
concerning wildlife of every single country in the world. These 
laws put Americans at risk of unjust prosecution and conviction 
through the difficulty of ascertaining foreign law and 
complying with it. Gibson Guitars, I think, is a recent victim 
of this phenomenon.
    Let me conclude with four recommendations for Congress. 
First, Congress should concede limits on the treaty clause 
power so as to protect our system of federalism and to protect 
Americans' rights. Second, Congress should reform or repeal the 
alien tort statute. Third, Congress should reform the Lacey Act 
and other acts that incorporate foreign or international law. 
If a law imposes requirements on Americans, those requirements 
should be considered by Congress or an agency, and they should 
be spelled out in the law. There should be no outsourcing. 
Fourth, where U.S. statutes do incorporate foreign or 
international law, Congress should provide administrative safe 
harbors by which law-abiding citizens can obtain a binding 
opinion on how they may comply with the law and avoid 
punishment.
    Again, I thank the Committee for the opportunity to offer 
these remarks, and I look forward to your questions.
    [The prepared statement of Mr. Grossman follows:]
    
    
    


                               __________
    Mr. Franks. Well, thank you, Mr. Grossman.
    And, Professor Fontana, you are now recognized, sir, for 5 
minutes?

  TESTIMONY OF DAVID FONTANA, ASSOCIATE PROFESSOR OF LAW, THE 
            GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

    Mr. Fontana. Thank you for having me. Chairman Franks, 
Ranking Member Nadler, Members of the Subcommittee, thank you 
for having me today to discuss this very important issue. I 
want to make three quick points summarizing my testimony.
    First of all, banning entirely the use of foreign law in 
American Federal courts in all cases would be very damaging to 
American business. Second, banning entirely all foreign law in 
all cases in American courts would hurt courts in their attempt 
to answer the questions that come before courts in deciding 
constitutional cases. And, third of all, and very importantly I 
think, there is quite a consensus across ideological lines and 
over the history of the Supreme Court that some use of foreign 
law in some cases is perfectly appropriate within our 
constitutional jurisprudence, and within our constitutional 
traditions.
    So, first of all, I want to emphasize the point separate 
from the use of foreign law in interpreting the Constitution. 
Foreign law plays a central role in allowing American corporate 
to compete in a global economy. As we know, American businesses 
compete internationally now, and as part of that, they have to 
have the freedom of contract. They have to be able to enter 
into contracts with companies overseas, who, quite often, will 
want there to be some part in the contract that allows the 
disputes to be settled using the law of some country other than 
the United States.
    My concern about banning foreign law in Federal courts is 
that this would prevent this from happening, which would really 
put American corporations at a disadvantage in making contracts 
and engaging in transactions with foreign companies.
    Second of all, in the constitutional context, foreign law 
is quite often helpful factual evidence to help courts decide 
the constitutional issues that all people agree they must 
decide. So, the original understanding of the Constitution and 
the text of the Constitution, earlier cases that courts have 
decided, get you part of the way to an answer in a judicial 
decision, but they do not get you all the way. In every case 
that raises complicated constitutional issues, there are 
questions about whether or not what the government is doing is 
the appropriate means to further an appropriate ends. And it is 
long established across ideological lines that in deciding 
these issues, Federal courts look to lots of different kinds of 
evidence. They look to State laws, and often they look to 
foreign laws. If they are trying to decide if there is another 
policy way of pursuing an important goal, it is helpful to know 
what other policy options there are out there. If they want to 
know if this policy goal will actually succeed, it is help to 
see whether in States in or in other countries whether this 
policy has proven successful.
    Finally and briefly, but importantly, I think that there 
has been a misunderstanding in this discussion in all different 
circles about how kind of controversial this issue has been 
over history and on the current Court.
    So, Justice Scalia, who is often cited as the strong 
proponent or strongest opponent of using foreign law, is on the 
record as saying that foreign law is helpful in deciding 
constitutional cases and making factual determinations. Indeed, 
he cited to foreign law in his dissent in Lawrence v. Texas. He 
cited to foreign law in his opinion just last year in a gun 
rights case. Justice Alito has cited to foreign law. Justice 
Thomas has cited to foreign law. And, again, this is not new. 
The Federalist Papers reference several dozen foreign countries 
as part of their understanding of the new Constitution. In 
deciding Marbury v. Madison, a case we all know that 
established the American tradition of judicial review, Chief 
Justice John Marshall cited to British constitutional practice, 
not at the time of the founding, but at the time of Marbury.
    So, my concern about banning foreign law entirely in 
Federal courts is that this would make illegal immediately, as 
a matter of Federal law, a practice that was engaged in by 
people from John Marshall to Antonin Scalia. And I think we 
should be hesitant about banning something that has been so 
established across so many ideological lines over such a long 
history.
    Thank you.
    [The prepared statement of Mr. Fontana follows:]
    
    
    


                               __________
    Mr. Franks. We thank the gentleman.
    And, Professor Rabkin, you are recognized for 5 minutes, 
sir?

  TESTIMONY OF JEREMY RABKIN, PROFESSOR OF LAW, GEORGE MASON 
                    UNIVERSITY SCHOOL OF LAW

    Mr. Rabkin. Thank you. Let me try to summarize my testimony 
and also respond to some things that have been said.
    The first general point I want to make is, I associate 
myself with my fellow witnesses and with Mr. Nadler and others 
in saying that I think there are a lot of legitimate uses of 
foreign law in some contexts. Mr. Nadler mentioned, I think 
rightly, that you can go back to the Marshall court, and they 
cite, as in the Charming Betsy case, foreign decisions. 
Absolutely right. That case was about the law of nations, even 
in the quote that you mentioned. If we are talking about the 
law of nations, we want to know what other nations are doing, 
the law of nations, meaning international law. Yes, of course. 
I think Professor Fontana cited the cases where there is a 
contract with some overseas partner, and there is some 
stipulation about applying foreign law. Yes, that is fine.
    So, I want to emphasize this. I think the point that really 
should concern people is not that somewhere in some context 
there is some reference to foreign law. The proble, is 
interpreting the United States Constitution with reference to 
foreign practice. That is the first point I want to clarify.
    The related second point, the reason why people are upset 
about this, these are not just casual references. It is not 
just, ``Oh, well, maybe, possibly that is illuminating.'' There 
is a campaign to organize the world this way. When you have 
human rights treaties, either those treaties take precedence 
over national law, or it is really hard to understand what is 
it you are talking about. If it is merely just one of a 100 
different commitments which you can override at will, then 
international human treaties begin to look pointless.
    So, of course, there are a lot of academics, and now there 
are a lot of political figures, and now finally you have, you 
know, courts and authorities in Europe saying, ``Well, actually 
there should be something like a global constitution, the core 
of which would be human rights protections which apply 
everywhere.'' It is that context that makes people worry about 
appeals to what is being done in foreign countries in the area 
of human rights, because the implication is we all should be 
doing more or less the same thing under the heading of human 
rights.
    So, now I would like to make two responses to that before I 
end this initial statement. The first is--this is going to make 
people crazy, and it is already making people crazy. It is 
really shocking to me when you go on to the Internet just how 
much hysteria there is about this. And I think a lot of it, it 
is certainly ugly. A lot of it is really worrisome. But people 
are reacting to what they see as a kind of threat, which is 
that somehow our Constitution is being taken away.
    There is an easy way of calming a lot of this, which is to 
just say firmly and clearly, ``Well, we are not going to do 
that. Our Constitution will remain our Constitution. We will 
not give authority to what is being done in foreign countries 
or even in UN or international forums of other kinds when it 
comes to interpreting our Constitution.'' I think it would calm 
people, and calm is good in itself. It is particularly valuable 
for things which are actually important. You do not want people 
getting crazy about what the Constitution means.
    The last point I want to make is, you could say if you want 
to, well, there are always hysterical people and the Internet. 
It gives them more openings. Talk radio does, too. We can just 
live with that. Okay, fine. But we should focus on a couple of 
issues, and I mentioned one in my testimony, and I'll mention 
it again, which is, we have applied international standards in 
interpreting the Eighth Amendment ban on cruel and unusual 
punishment. Why only the Eighth Amendment? Why not other 
amendments? Why not the First Amendment? The United States is 
an outlier in the world when it comes to protection of free 
speech. Most of our closest international partners, that 
includes Canada, that includes every country in Western Europe, 
I think a lot of countries in Latin America, think that 
actually free speech should be more constrained. There is now 
an international campaign at the UN. Every year the United 
Nations General Assembly passes a resolution saying there need 
to be bans on Islamaphobic speech and other kinds of speech 
that criticize other religions. A lot of countries think, well, 
yes, we can accommodate you on that. We need to restrain anti-
Islamic speech and other kinds of anti-religious speech or hate 
speech against particular groups. This is an accepted practice 
in a lot of other countries. Yes, I know, but do we want to do 
that here? I think that is a real serious question, and it is 
becoming a somewhat urgent question.
    It is not helpful in answering that question to say, ``Oh, 
well, we have the First Amendment,'' when people are telling us 
provisions of our Constitution have to be interpreted in the 
light of what foreign countries think parallel guarantees mean 
in their countries. In Europe and Canada, they have guarantees 
of free speech. They think free speech means free--unless you 
offend some particular religious or ethnic group. I do not 
think we want to go down that road, but I think it would be 
very helpful in calming people and also in stabilizing our law 
to say what foreigners think about free speech is not a guide 
to what our First Amendment means.
    And it would be helpful, I think--I will wrap up with 
this--I am not actually in favor of Representative Adams' 
measure, as I understand it, to say there should be no 
references to foreign law anywhere. But I think it would be 
very worthwhile to have the House say we do not think the 
Constitution should be interpreted in the light of foreign 
precedents or international human rights law. Thank you.
    [The prepared statement of Mr. Rabkin follows:]
    
    
    


                               __________
    Mr. Franks. Thank you, Professor Rabkin, and I thank all of 
you for your testimony. And I will now begin the questioning by 
recognizing myself for 5 minutes.
    Professor Rabkin, I will begin with you. Your testimony was 
very compelling. And it has been noted today that even 
conservative justices, like Mr. Scalia and Mr. Thomas, have 
cited foreign laws in the course of their careers. And, of 
course, I would like for you to address that. It seems to me 
that there is some phraseology here, and I think you addressed 
it very well that it is one thing to cite some indication of 
foreign law as a part of your narrative, another thing to 
authorize your decision and your interpretation of the 
Constitution and gain its authority from that foreign law. And 
I think it is a key issue here to try to separate those things.
    So, what is the difference between an appropriate citation 
in a foreign law and an inappropriate reliance on it? Again, I 
think Ms. Adams has a good angle here. She talks about 
``authorized'' rather than ``based on,'' and I think that is, 
at least, a good distinction. Can you tell me what you think 
the difference an appropriate citation of foreign law and an 
inappropriate reliance on it would be?
    Mr. Rabkin. Well, let me start with the easy distinction. 
If a case is about international law, we call it international 
for a reason. It involves other countries. Particularly if it 
is a case about a treaty, yes, then it is very worthwhile to 
know what our treaty partners think they have committed to when 
we try and figure out what we are obligated to do. That is the 
easy one.
    I think it is quite appropriate when you look at provisions 
in the United States Constitution to look at what English law 
was at that period when the framers were using expressions 
which they were borrowing from English law. That is another 
easy one.
    I want to repeat what I said. I think in a different 
context, no one would pay attention to this. It is not that 
being foreign is a taint. That is not it at all. I mean, of 
course you could learn something from a lot of different 
sources, from the Bible, from Shakespeare, from all kinds of 
sources. But when people are saying, ``Yes, we are building up 
a body of transnational human rights law,'' then I say, no, I 
do not want to be tangled up in a transnational project which 
involves basically rewriting our Bill of Rights.
    And if I cannot say, this is exactly the line, then I would 
say, people are worried about this, then let us back off and 
let us actually restrain ourselves more than we might otherwise 
feel was necessary so that we avoid even coming up to this 
line, when we are having trouble deciding exactly where that 
line should be.
    I would say when it comes to guarantees in the Bill of 
Rights, I think that is the simplest way of putting my 
position. When it comes to guarantees in the Bill of Rights, we 
should not be distracting ourselves with what foreigners think 
these things mean in their very different legal contexts.
    Mr. Franks. Well, thank you, sir. And, Mr. Grossman, I will 
ask you, what does it mean for our Federal structure when the 
Supreme Court puts greater emphasis on what a majority of 
foreign countries think about a practice than it puts on the 
laws that a majority of the U.S. States have already enacted?
    Mr. Grossman. Well, two quick thoughts with respect to 
that. When the Court's jurisprudence, particularly under the 
Eighth Amendment concerning evolving standards of decency, 
cites to foreign law and tries to discern a consensus among 
foreign states that somehow governs U.S. practices, it is 
directly contrary to both the mechanism for constitutional 
change that is within the Constitution itself, as well as the 
division of power specified by the Constitution, and sort of 
reified by the 10th Amendment.
    The second point would be, it is not apparent to me that it 
is actually appropriate either that the Court should be citing 
or trying to discern a trend among the States in determining 
evolving standards of decency. I am not sure that evolving 
standards of decency properly reflects the original 
understanding of the Eighth Amendment. If a State is doing 
something, I think, that was understood to be permissible at 
the time of the ratification of the Eighth Amendment, then that 
is something that, it may or may not be good policy, but it is 
something that is within the State's rights to do.
    Mr. Franks. Thank you. Let me go then to Professor Fontana 
for a moment. I just wanted to make sure I understand, and, 
again, that is a leading question, and I will give you the 
head's up on it. Based on your testimony today, is it your 
opinion that courts should decide even in the policy arena?
    Mr. Fontana. I am sorry, I missed the question.
    Mr. Franks. You mentioned some of the latitude the courts 
had. Based on your testimony today, is it your opinion that 
courts should also decide in some areas of policy?
    Mr. Fontana. I do not feel that in deciding cases, the 
Federal courts need to look to policy considerations. However, 
as a matter of constitutional doctrine, it is fairly settled 
law that in deciding constitutional issues, justices and judges 
on the lower courts will look to how policies have played out 
in practice as a way of seeing what sorts of constitutional 
implications there are to how these policies have played out.
    So, they are not looking at them to decide whether this is 
a good policy or a bad policy. They are looking at them to see 
whether or not there might be other policies which infringe 
less on constitutional rights, and which promote the goals of 
Congress better. And this is a practice that, I think, is 
established for a long time and agreed to by Justice Thomas, 
all the way to Justice Ginsberg.
    Mr. Franks. Well, thank you. And I now recognize the 
Ranking Member for his questioning?
    Mr. Nadler. Professor Rabkin, you just said that you did 
not support the language in the bill, H.R. 973. Professor 
Fontana, do you? What do you think of that?
    Mr. Fontana. I agree that I think the language is 
potentially over broad. The previous times that this 
Subcommittee has met to consider this issue, the language was 
typically limited to just interpreting the Constitution, which, 
I believe, Professor Rabkin and Mr. Grossman indicated are 
their concerns.
    Now, while I disagree with their concerns on this 
legislation, I think that there would be even broader agreement 
that banning foreign law to decide any issues in all Federal 
courts would be overly broad.
    Mr. Nadler. Thank you. Now, Professor Fontana and Rabkin, 
forgetting about the questions of interpreting treaties, and 
laws, and things like that, if this is about the use of foreign 
law only as an informative resource, that is a binding question 
on a treaty or something. If the problem is only that courts 
look to foreign law as a potentially informative resource, 
should we also ban reference to other non-binding resources, 
like law reviews, or perhaps only those in foreign law 
journals, to social science research? Do really believe that 
these sources are less harmful and more informative than what 
might be gained from review of how judges of other nations have 
treated similar issues? Professor Rabkin, and then Professor 
Fontana?
    Mr. Rabkin. No.
    Mr. Nadler. Microphone.
    Mr. Rabkin. The judicial committee of the House of Lords 
used to have this rule that they would not cite legal 
scholarship by a scholar who was still alive, which I thought 
was a very salutary rule, which I----
    Mr. Nadler. That might lead to murder cases. [Laughter.]
    Mr. Rabkin. Well, for one reason or another, I do not know 
if that was the reason, they abandoned that restraint. I would 
say the difference is there are a lot of different law 
professors, and no one really takes very seriously the idea 
that all of them are working together to establish the 
positions of the United Law Professors.
    Mr. Nadler. And all foreign courts are working together?
    Mr. Rabkin. Well, in fact, people do talk about this, and 
even the judges sometimes talk about this. You want to show 
respect for the work of judges----
    Mr. Nadler. Okay.
    Mr. Rabkin [continuing]. Who are in the same area, right? 
And people do talk about building up a common body of law.
    Mr. Nadler. Okay, thank you.
    Mr. Rabkin. If that is the project, then I do not want to--
--
    Mr. Nadler. Thank you. Professor Fontana?
    Mr. Fontana. Yes, thank you for the question. I mean, as a 
law professor, I should say that I think that writings of law 
professors are incredibly important. But I think that there is 
even more relevance, I think, to the decisions of foreign 
courts on relevant issues, because, as I said, part of the 
issues that courts are deciding in constitutional cases is, are 
there alternative ways of pursuing these goals? How will these 
things worked in practice?
    It is the factual evidence, the evidentiary kind of import 
of this foreign law evidence that makes it relevant in courts. 
It is not because it is foreign law; it is because it is 
evidence in cases that courts need to decide the issues before 
them.
    Mr. Nadler. Thank you. Again, Professors Rabkin and 
Fontana, what do you think the penalty for a judge who fails to 
follow this prohibition ought to be? For example, how do you 
enforce this bill?
    Mr. Rabkin. Excellent question.
    Mr. Nadler. Thank you.
    Mr. Rabkin. I do not think it could constitutionally be 
enforced, and I think you have quoted Justice Scalia. I often 
agree with Justice Scalia. I think that I agree with the 
position that he took on this issue.
    Mr. Nadler. That Congress should not legislate this.
    Mr. Rabkin. That Congress cannot tell judges, you may not 
decide on this basis, when it comes to interpreting the 
Constitution. I think that is a fair point.
    Mr. Nadler. Thank you. Professor Fontana?
    Mr. Fontana. Yes, thank you for the question. I think what 
is significant about this legislation is that it is, in fact, 
legislation. The earlier hearings were about resolutions, and 
even those Justice Scalia thought raised significant 
constitutional problems. So, I think it might be 
unconstitutional on its face, and part of the reason is that it 
would be very difficult, if not impossible, for the Court.
    Mr. Nadler. Thank you. Professor Rabkin, you stated that 
the Supreme Court is ``persistent in its practice of citing 
foreign law.'' And you cite two death penalty decisions, Roper 
v. Simmons, 2005, and Graham v. Florida. Testifying at the 
hearing on this issue convened in this Committee in 2004, you 
acknowledged that the Supreme Court had not treated foreign 
sources as binding authority----
    Mr. Rabkin. Yes.
    Mr. Nadler [continuing]. In Atkins or in Lawrence. Are you 
claiming that they treated foreign law as a binding rather than 
an informative resource in Roper or in Graham? And do you have 
any other examples of the supposedly persistent practice that 
has occurred since the 2004 hearing?
    Mr. Rabkin. So, just to be clear, I do not believe a single 
one of those cases turned on----
    Mr. Nadler. Okay.
    Mr. Rabkin [continuing]. A citation to foreign law.
    Mr. Nadler. Thank you. And this persistent practice, can 
you cite any other examples of the supposedly persistent 
practice since our 2004 hearing, besides those two cases?
    Mr. Rabkin. Not in a majority opinion.
    Mr. Nadler. So, in other words, this persistent developing 
pattern that we have to be aware of was in two cases since 
2004.
    Mr. Rabkin. Yeah.
    Mr. Nadler. Okay. This is my last question. Courts 
considering this issue sometimes cited the Bible in their 
decisions. The Arizona Supreme Court did so in a decision 
upholding its sodomy laws, State v. Bateman, 1976. Should we 
believe that they decided that case based on Leviticus and 
Deuteronomy? If they consider the Bible binding on them, was 
that unconstitutional in itself? Should we be equally outraged 
by these historical references you suggest we should be by 
references to foreign law in other cases? After all, Leviticus 
is not a domestic legal document duly passed by Congress. 
Professor?
    Mr. Rabkin. Yes. So, my colleague here, Professor Fontana, 
is always thanking you for the question. I really want to thank 
you for this question.
    This is a very good analogy if you think we are citing 
foreign practice the way they sometimes cite something from the 
Bible as a sort of passing reference. If there were an 
organized campaign to say we need to Christianize American law 
or we need to coordinate law with the higher law of the Bible, 
then I think people would be a lot more upset about these 
passing references to the Bible.
    Mr. Nadler. So, basically you are saying the problem is 
that there is an organized campaign. But you also said there 
have been no instances of this since 2004, other than those two 
decisions. So, where is the organized campaign?
    Mr. Rabkin. Look--this, is again a very helpful question 
and I thank you for it. I think what Chairman Franks was 
suggesting, was some sharp line between when you rely on it as 
the basis of the decision, and when you just mention it. It 
does not work like that in practice. What you do if you are 
trying to develop a doctrine is you sort of insinuate it. You 
refer to it without quite basing your decision on that. Chief 
Justice Marshall did this in a lot of famous cases. You put 
something on the table, you give it prominence, but you find 
some other way of deciding this particular case. And over time, 
this builds up a structure and people forget that that was not 
actually the basis of the decision, and they get used to the 
idea of it. Oh, yes, we do, for example, have the dormant 
commerce clause doctrine, which Marshall did not rely on in 
Gibbons v. Ogden, but put on the table.
    That is how courts develop controversial law. And I am 
concerned about their developing controversial law in the 
future in this area.
    Mr. Franks. I thank the gentleman, and I now recognize the 
gentleman from Iowa, Mr. King.
    Mr. King. Thank you, Mr. Chairman, and I thank the 
witnesses for your testimony. A few things I am curious about, 
and I think one of them, if I can direct my first question to 
Professor Fontana, would be a little bit on the side, a 
parallel topic, not directly the subject of the testimony here.
    But if the United States enters into a treaty or an 
agreement with a foreign country or an entity broader than the 
United States, are the constitutional protections that are in 
the Bill of Rights, as Professor Rabkin referenced, are they 
paramount over the decision of that treaty? Can the Senate 
ratify a treaty that diminishes the rights of Americans?
    Mr. Fontana. I believe there is a Supreme Court case from 
several decades ago called Reid v. Covert, which says that 
there are Bill of Rights limitations on treaties duly entered 
into under the supremacy clause, yeah.
    Mr. King. Bill of Rights limitations on that, meaning that 
the Bill of Rights restrains, protects American citizens 
regardless of the decision? Did I hear that right?
    Mr. Fontana. So, if there is a treaty validly entered into, 
it cannot violate the First Amendment. It cannot violate the 
Fourth Amendment, and so on.
    Mr. King. Okay. And if it did, then how would that treaty 
be regarded?
    Mr. Fontana. I would imagine that a court would strike down 
whatever was being done pursuant to the treaty.
    Mr. King. So, that is good news to me. If my constitutional 
rights, particularly those Bill of Rights constitutional 
rights, happen to be violated by a treaty that perhaps this 
Administration could be entering into, then there would be an 
opportunity to, if one had standing, to litigate that all the 
way to the Supreme Court, for example, and to be able to see a 
treaty such as that invalidated by the Court.
    Mr. Fontana. I do not know that necessarily the entire 
treaty would be invalidated, but just the parts of the treaty 
that implicate Bill of Rights concerns.
    Mr. King. Thank you very much. Professor Rabkin?
    Mr. Rabkin. I agree that that is what ought to happen. I do 
not think we can be totally confident that that is what would 
happen. Take the case that Professor Fontana mentions, Reid v. 
Covert. The opinion that he is referencing did not get five 
votes on the Supreme Court; it got only four. And a lot of 
people at the time were saying, ``Well, I do not know, not 
exactly, what it means.''
    This doctrine should be the law, and there are a lot of law 
review articles saying, ``Oh, yes, the Bill of Rights must 
trump a contrary treaty.'' It is not absolutely clear from the 
case law that that is what the Supreme Court thinks.
    And if I can just add one other thing, I think the real 
concern here is not that the Supreme Court would say, ``Oh, too 
bad, the Bill of Rights has been superseded by a treaty.'' The 
concern is rather that the Court would say, ``We have to 
reinterpret the Bill of Rights so that it can be compatible 
with international commitments, particularly international 
commitments in the area of human rights, which, after all, 
concern human rights,'' so they are good, and they should take 
priority, right?
    And sincere, serious people who are not involved in a 
conspiracy have conflicting views about what is the right human 
rights position on, for example, hate speech. And the UN 
position, and this goes back decades, is you not only have the 
right to free speech, but you also have the right to be 
protected from hate speech. Both of those are rights, and that 
means actually the international human rights position is you 
should have less free speech protection than Americans have.
    I do not think we can say with confidence, particularly if 
the Supreme Court is going around reinterpreting the 
Constitution to make it consistent with international trends--
--
    Mr. King. Where is my protection from hate speech in the 
Constitution? Where is my protection from hate speech in the 
Constitution?
    Mr. Rabkin. We do not have protection from hate speech.
    Mr. King. And so, I ask the question for this point then, 
that it is possible in the explanation that you have delivered 
here, that as we would see those clearly defined rights that 
are primarily defined in the bill of rights, could potentially 
be compromised and eroded by a reinterpretation of them by 
making accommodations to international norms. And those 
international norms might impose a prohibition on hate speech 
that limits our freedom of speech, or a prohibition on gun 
rights that limits our gun rights.
    Mr. Rabkin. This is what people worry about. And whoever 
says, ``Oh, you have nothing to worry about,'' I think is not 
paying attention.
    Mr. King. And so, I will maybe turn to Mr. Grossman and ask 
you about this. We have this Constitution that I think was 
clearly defined, and yet it gets redefined over the centuries. 
And the idea that we are dealing with a--I will phrase it this 
way. If there is a case before the Court, do the opinions of 
the American people matter in the evaluation of that? Does 
public opinion matter? Does a consensus matter? Do the American 
people really get to weigh in on that if the Supreme Court is 
sitting up there listening to a case?
    Mr. Grossman. Well, gosh, I hope not. You know, the idea 
that the Supreme Court should interpret the Constitution or its 
statutory law on the basis of poll results or something like 
that is troubling, but that might actually even be a better 
basis and a more legitimate basis for decision than citing the 
opinions of foreign elites, whose views do not even accord with 
the views of their own people.
    Mr. King. You actually borrowed my last question. But I 
would ask consent to ask one concluding question.
    Mr. Franks. Without objection.
    Mr. King. I thank the Chairman for that, indulging me, 
because I really wanted to turn this then to Professor Fontana 
and ask if you agree with the response of Mr. Grossman, but 
follow that with this: at least in theory, public opinion in 
America does not matter when it comes to a legal opinion of a 
panel of justices. And so then, how can a global consensus have 
impact on a court's decision if public opinion in America does 
not?
    Mr. Fontana. I believe in the Eighth Amendment context, the 
Supreme Court has long held that because the Eighth Amendment 
bans cruel and unusual punishment, that surveying the practices 
of the States is considered relevant. And looking to foreign 
laws is relevant to determine if it is unusual because there is 
a lot of reason to believe, going back to when the Eighth 
Amendment was adopted, that the founding fathers wanted the 
Eighth Amendment to be interpreted going forward by looking to 
whether or not a particular punishment was actually unusual.
    Mr. King. We have 37 States that supported a policy that 
was overturned by the Court because of an international 
consensus. How can a perceived international consensus trump 
the will of the people?
    Mr. Fontana. I do not believe that it should.
    Mr. King. But it did.
    Mr. Fontana. Justice Kennedy in Roper said that the foreign 
law can provide ``respected and significant confirmation.'' 
Now, there are questions about whether or not he got the 
domestic law part right, but the analysis in Roper says that 
you only turn to see whether or not a practice is unusual 
around the world after you first determine that it is unusual 
domestically.
    Mr. King. Thank you very much. Thank you, Mr. Chairman. I 
yield back.
    Mr. Franks. And I thank the gentleman. I now recognize the 
gentleman from Illinois, Mr. Quigley.
    Mr. Quigley. Thank you, Mr. Chairman.
    Mr. Grossman, I do not want you to feel neglected here. And 
I do not want to paraphrase it and get it wrong, Professor, but 
I think what he was getting to is it is difficult to find the 
bright line when this is okay. I think, Professor, there is 
some legitimate uses of foreign thought, judicial thought. Do 
you see a bright line out there that you can delineate where it 
is okay, when it is not, or just nothing at all?
    Mr. Grossman. Well, let me assume, first, that we are 
talking about constitutional interpretation as opposed to other 
applications----
    Mr. Quigley. Well, is that one of your bright lines, if it 
is only applying to constitutional interpretations, or is it 
just as the bill is proposed here, just anything?
    Mr. Grossman. Well, as I explained in further detail in my 
written testimony, I identify with the remarks of other 
witnesses here with respect to the use of foreign law to 
interpret, say, contracts or international treaties. That may 
be relevant in those instances, although it may be a difficult 
undertaking. I think that is something that is often 
overlooked.
    So, I focus on constitutional interpretation because I 
think that is the area where the controversy lies, and ought 
properly to lie. With respect to that, is there a bright 
dividing line? To my mind, the important and legitimate foreign 
sources and international sources of law in constitutional 
interpretation are those that elucidate the background 
principles of the law that the framers in effect legislated 
against when they----
    Mr. Quigley. But who decides that point? I mean, can you 
legislate that at all where you decide at this point it is 
appropriate, and at this point it is not?
    Mr. Grossman. Well, I think that is a wonderful question. 
In other words, what is it that Congress can do in this area? I 
think it is perfectly legitimate as a co-equal branch that 
Congress should state its belief of the proper means of 
interpretation of the Constitution, the proper means of 
interpretation of its own statutes. I think that is perfectly 
legitimate.
    And the Court, although it may not bow to the wishes of 
Congress in that sense, in other words, it will not be bound by 
them necessarily, I think should give them some degree of 
deference and should take them into account.
    Mr. Quigley. So, help me here. You know, as an attorney, my 
concern here is that you are limiting. I feel like I am in a 
scene from Inherit the Wind, begin to limit thought, right? It 
is not an isolated country in any other respect. Our 
scientists, doctors, teachers, lawmakers, artists, business 
leaders, technology, architects--it is a world of thought out 
there. And to say, we are not going to listen, as this proposed 
bill says, to any other authority. I mean, we listen to Locke 
and Rousseau.
    Mr. Rabkin. Not Rousseau.
    Mr. Quigley. Sorry?
    Mr. Rabkin. Not Rousseau.
    Mr. Quigley. Well, I mean, I am sorry. If you read the 
Federalist Papers, they were considered, correct? Yes, thank 
you.
    Mr. Grossman. The challenge with the citation of foreign 
law in particular is that law is generally cited in court 
opinions for its binding legal effect. In other words, it is 
relied on as a source of law. When a court cites in passing, a 
turn of phrase from a novel, or a scene from a movie or 
dialogue, or a phrase even from the Bible, it is not cited in a 
way as having binding legal effect. So, maybe foreign law could 
perhaps set a mood or an atmosphere.
    But when it is cited in a way such that it is taken to 
govern or speak to the meaning of, say, the Constitution of the 
United States, that is a very different type of usage of law. A 
law review article is not itself binding law; it describes what 
the law is. But a foreign court opinion does not describe what 
the United States Constitution says or means. It says something 
else entirely.
    Mr. Quigley. But you certainly do not want to tell judges 
at the local level or the Federal level how they are coming at 
their decisions, what authorities, what aspects of what they 
are learning. I mean, we are all a bundle of everything we have 
learned in our experiences. At what point are those foreign? It 
becomes very limiting, and the law should be the opposite of 
that. The law should be open to all kinds of thought.
    You know, brilliant writers are not just in the United 
States. The great jurists are not just in the United States as 
well.
    Mr. Grossman. Well, sir, I am afraid I do not subscribe to 
that view. If I were before a court, I would like to be judged 
on the basis of the law and not on the basis of a novel or a 
movie or Shakespeare.
    Mr. Quigley. One of the best decisions I ever read was 
Lights in Wrigley Field. They quoted ``Take Me Out to the 
Ballgame,'' one of the best, upheld by the Supreme Court. 
Whatever it takes to be just and fair. But as soon as you start 
limiting thought, you might as well have robots up there.
    Mr. Grossman. Well, to the extent that they are merely 
thinking such things, but not relying on them for any legal, 
binding effect, to the extent that they are not decisional 
materials, fine, so be it. But I do not think that that is 
actually the focus of the controversy unfortunately.
    Mr. Quigley. It is the focus of this bill. Thank you.
    Mr. Franks. I would like now to recognize Mr. Scott from 
Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Rabkin, the language in the bill says that any court 
created by or under Article III of the Constitution of the 
United States, ``No justice, judge, or other judicial official 
shall decide any issue in any case before that court, in whole 
or in part, on the authority of foreign law, except where a 
constitution of Congress provides it.'' What does authority 
mean?
    Mr. Rabkin. I think that is a fair question.
    Mr. Scott. Well, let me ask you----
    Mr. Rabkin. Probably a difficulty with the language in the 
bill.
    Mr. Scott. Let me ask it another way. What authority does 
foreign law now have in Article III, United States Federal 
courts? Authority.
    Mr. Rabkin. Putting aside a case involving a foreign 
contract where you are trying to decide it under foreign law 
because it was negotiated in a foreign country----
    Mr. Scott. Well----
    Mr. Rabkin [continuing]. Putting all that aside and just 
speaking about constitutional decisions, I think it is very 
hard. This is why law professors sometimes get paid a sizable 
salary to sort out what is the actual basis of the decision 
because there is often a lot of doubt.
    Mr. Scott. If you have a U.S. circuit court, and you are 
talking about district court, and they have a case on point, 
that would be authority, is that right?
    Mr. Rabkin. Yes.
    Mr. Scott. What about, as the gentleman from New York has 
pointed out, the social service research, and State court 
decisions, law review articles? If they are cited, is that 
authority? It's not authority; it's just reason, help in 
reasoning.
    Mr. Rabkin. Honestly, I think there is not such a clear 
line here. Mr. Quigley used the word ``bright line.'' I do not 
think there is a bright line between----
    Mr. Scott. Well, if----
    Mr. Rabkin. The things that determine the outcome and the 
things that go into the argument.
    Mr. Scott. If you have a case of first impression for which 
there is no authority----
    Mr. Rabkin. Yes.
    Mr. Scott [continuing]. What is wrong with noticing State 
court decisions or law review articles to help you decide?
    Mr. Rabkin. This is a very, very good example because what 
it shows is when you do not have another authority, you fall 
back on things that are not quite authoritative that are being 
used in place of the authority that you do not have, which 
means that you are treating them as a little bit authoritative.
    Mr. Scott. Well then, if a foreign court has dealt with the 
issue and produced a well-reasoned opinion, what's wrong with 
citing that?
    Mr. Rabkin. I do not think 30 years ago we would be having 
this debate, and 30 years ago we would not have regarded that 
as controversial. I think in the current context where people 
are saying there should be transnational, quasi constitutional 
international human rights norms, then it makes people worry.
    Mr. Scott. Well, if you have a case of first impression, 
and we are trying to decide the case, what is wrong with 
noticing that every other court in the world has come up with a 
particular----
    Mr. Rabkin. Because the implication is that we ought to 
be----
    Mr. Scott. It might make some common sense to conform the 
United States to what everybody in the world is doing.
    Mr. Rabkin. This is why----
    Mr. Scott. It might. It might not, if it makes sense.
    Mr. Rabkin. I think you have put this very well. A lot of 
us are concerned that the implication of this reasoning is that 
the United States needs to conform to the rest of the world. 
And we started out by saying let the rest of the world conform 
to us, that we hold these truths to be self-evident to 
ourselves.
    Mr. Scott. Since there is no authority based on what makes 
sense, Professor Fontana, what about based on the reasoning and 
not the authority of foreign law? If we pass this bill that 
says you cannot base it on the authority of foreign law, but 
you based on reasoning of foreign law, would that violate this 
legislative language?
    Mr. Fontana. I also admit that I am a little unclear about 
the use of the word ``authority'' in the legislation. I believe 
there are two different types of authority that courts to look 
to, binding authority, like the decision of a higher court, and 
persuasive authority, which, as your question suggests, could 
be things like law review articles, social science evidence. 
And I am not sure what exactly the legislation covers.
    But I take it to cover looking to foreign courts or foreign 
law for either their reasoning or for whatever their actual 
state of law, forever the outcome as well. I take it to ban all 
foreign law.
    Mr. Scott. Thank you, Mr. Chairman. I yield back.
    Mr. Franks. Well, the gentleman yields back with extra 
time. So, I guess he yielded to me here. So, Professor Rabkin, 
take one last shot at it here, and tell me what would be the 
purpose of placing something in the argument if it is not part 
of the binding legal authority. And that is a question, not a 
leading point.
    Mr. Rabkin. Yeah. So, I would like to mention two things, 
and one is that, you know, lawyers try out a lot of different 
arguments, and they hope that if you are not persuaded by this, 
maybe you will be persuaded by that. And since you are aiming 
at maybe different people there, different judges, for example, 
or different members of the jury, it is not helpful to you to 
say, ``This is the central argument, the real argument.'' You 
may want to be a little vague about which one is crucial, which 
one is decisive, which one is just background. So, that is one 
way in which this gets fuzzed over.
    And I think another way it gets fuzzed over is every 
important case, particularly before the Supreme Court, is not 
just deciding that particular dispute. It is building precedent 
for the future. So, one of the things that you could be doing 
is laying the groundwork for later cases to say, ``Ah, yes, 
here is something which they mentioned in that earlier case.'' 
That happens all the time. And it, again, means that you have 
to worry about something which maybe Mr. Nadler would say in 
this particular case is not really crucial to this particular 
case, but the Court is still, in a way, offering it for the 
future as something which can be drawn upon. And if you do not 
like this development, then you do not want to be piling up 
things that future courts can draw upon.
    Mr. Franks. Well, it has been a very interesting hearing, 
and I want to thank all the Members here, and certainly thank 
the panelists. It seems like we have been arguing this point 
for a long time, the rule of law versus the rule of men. It is 
certainly an interesting subject.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
with which to submit any additional materials for inclusion in 
the record.
    And with that, again, I thank the witnesses, and I thank 
the Members and observers. And this hearing is now adjourned.
    [Whereupon, at 11:14 a.m., the Subcommittee was adjourned.]








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