[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.]
A P P E N D I X
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Material Submitted for the Hearing Record