[Congressional Record Volume 151, Number 35 (Sunday, March 20, 2005)]
[Senate]
[Pages S3109-S3111]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         SUBMITTED RESOLUTIONS

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SENATE RESOLUTION 92--EXPRESSING THE SENSE OF THE SENATE THAT JUDICIAL 
DETERMINATIONS REGARDING THE MEANING OF THE CONSTITUTION OF THE UNITED 
  STATES SHOULD NOT BE BASED ON JUDGMENTS, LAWS, OR PRONOUNCEMENTS OF 
     FOREIGN INSTITUTIONS UNLESS SUCH FOREIGN JUDGMENTS, LAWS, OR 
 PRONOUNCEMENTS INFORM AN UNDERSTANDING OF THE ORIGINAL MEANING OF THE 
                   CONSTITUTION OF THE UNITED STATES

  Mr. CORNYN submitted the following resolution; which was referred to 
the Committee on the Judiciary.

                               S. Res. 92

       Whereas the Declaration of Independence announced that one 
     of the chief causes of the American Revolution was that King 
     George had ``combined with others to subject us to a 
     jurisdiction foreign to our constitution, and unacknowledged 
     by our laws'';
       Whereas the Supreme court has recently relied on the 
     judgments, laws, or pronouncements of foreign institutions to 
     support its interpretations of the laws of the United States, 
     most recently in Atkins v. Virginia, 536 U.S. 304, 316 n.21 
     (2002), Lawrence v. Texas, 539 U.S. 558, 573 (2003), and 
     Roper v. Simmons, 125 S. Ct. 1183, 1198-99 (2005);
       Whereas the Supreme Court has stated previously in Printz 
     v. United States, 521 U.S. 898, 921 n.11 (1997), that ``We 
     think such comparative analysis inappropriate to the task of 
     interpreting a constitution . . .'';
       Whereas the ability of Americans to live their lives within 
     clear legal boundaries is the foundation of the rule of law, 
     and essential to freedom;
       Whereas it is the appropriate judicial role to faithfully 
     interpret the expression of the popular will through the 
     Constitution and laws enacted by duly elected representatives 
     of the American people and under our system of checks and 
     balances;
       Whereas Americans should not have to look for guidance on 
     how to live their lives from the often contradictory 
     decisions of any of hundreds of other foreign organizations; 
     and
       Whereas inappropriate judicial reliance on foreign 
     judgments, laws, or pronouncements threatens the sovereignty 
     of the United States, the separation of powers, and the 
     President's and the Senate's treaty-making authority: Now, 
     therefore, be it
       Resolved, That it is the sense of the Senate that judicial 
     interpretations regarding the meaning of the Constitution of 
     the United States should not be based in whole or in part on 
     judgments, laws, or pronouncements of foreign institutions 
     unless such foreign judgments, laws, or pronouncements inform 
     an understanding of the original meaning of the Constitution 
     of the United States.

  Mr. CORNYN. Mr. President, I rise to express concern over a trend 
that some legal scholars and observers say may be developing in our 
courts--a trend regarding the potential influence of foreign 
governments and foreign courts in the application and enforcement of 
U.S. law.
  If this trend is real, then I fear that, bit by bit, case by case, 
the American people may be slowly losing control over the meaning of 
our laws and of our Constitution. If this trend continues, foreign 
governments may even begin to dictate what our laws and our 
Constitution mean, and what our policies in America should be.
  In a series of cases over the past few years, our courts have begun 
to tell us that our criminal laws and criminal policies are informed, 
not only by our Constitution and by the policy preferences and 
legislative enactments of the American people through their elected 
representatives, but also by the rulings of foreign courts.
  It is hard to believe--but in a series of recent cases, the U.S. 
Supreme Court has actually rejected its own prior precedents, in part 
because of a foreign government or court has expressed its disagreement 
with those precedents.
  With your indulgence, I will offer just a few of the most recent 
examples.
  Until recently, the U.S. Supreme Court had long held that the death 
penalty may be imposed on individuals regardless of their I.Q. The 
Court had traditionally left that issue untouched, as a question for 
the American people, in each of their States, to decide. That was what 
the Court said in a case called Penry v. Lynaugh (1989). Yet because 
some foreign governments have frowned upon that ruling, the U.S. 
Supreme Court has now seen fit to take that issue away from the 
American people. In 2002, in a case called Atkins v. Virginia, the U.S. 
Supreme Court held that the Commonwealth of Virginia could no longer 
apply its criminal justice system and its death penalty to an 
individual who had been duly convicted of abduction, armed robbery, and 
capital murder, because of testimony that the defendant was ``mildly 
mentally retarded.'' The reason given for the complete reversal in the 
Court's position? In part because the Court was concerned about ``the 
world community'' and the views of the European Union.
  Take another example. The U.S. Supreme Court has long held that the 
American people, in each of their States, have the discretion to decide 
whether certain kinds of conduct that has been considered immoral under 
our longstanding legal traditions should or should not remain illegal. 
In Bowers v. Hardwick (1986), the Court held that it is up the American 
people to decide whether criminal laws against sodomy should be 
continued or abandoned. Yet once again, because some foreign 
governments have frowned upon that ruling, the U.S. Supreme Court 
has seen fit to take that issue away from the American people. In 2003, 
in a case called Lawrence v. Texas, the U.S. Supreme Court held that 
the State of Texas could no longer decide whether its criminal justice 
system may fully reflect the moral values of the people of Texas. The 
reason given for the complete reversal? This time, the Court explained, 
it was in part because it was concerned about the European Court of 
Human Rights and the European Convention on Human Rights.

[[Page S3110]]

  Here's yet another example, from just a few weeks ago. Until this 
month, the U.S. Supreme Court had always held that 16- and 17-year-
olds--like John Lee Malvo, the 17-year-old who terrorized the 
Washington area in a sniper spree that left 10 people dead--may be 
subject to the death penalty, if that is indeed the will of the people. 
The Court said as much in a case called Stanford v. Kentucky (1989). 
Yet because some foreign governments have frowned upon that ruling as 
well, the U.S. Supreme Court, on March 1 of this year, saw fit yet 
again to take this issue away from the American people. In Roper v. 
Simmons, the U.S. Supreme Court held that the State of Missouri could 
no longer apply its death penalty to 16- and 17-year-olds convicted of 
murder, no matter how brutal and depraved the act, and no matter how 
unrepentant the criminal. The reason given for this most recent 
complete reversal? In part because of treaties the U.S. has never even 
ratified, like the United Nations Convention on the Rights of the 
Child, and because many foreign countries disagree with the people of 
Missouri.
  The trend may be continuing. Next Monday, March 28, the U.S. Supreme 
Court will consider the question whether foreign nationals duly 
convicted of the most heinous crimes are nevertheless entitled to a new 
trial--for reasons that those individuals did not even bother to 
mention at their first trial. As in the previous examples, the Supreme 
Court has actually already answered this question. In Breard v. Greene 
(1998), the Court made clear that criminal defendants, like all parties 
in litigation, may not sit on their rights and then bring up those 
rights later to stall the imposition of their criminal sentences. That 
basic principle of our legal system, the Court explained, is not 
undermined just because the accused happens to be a foreign national 
subject to the Vienna Convention on Consular Relations. Even this basic 
principle of American law may soon be reversed, however. Many legal 
experts predict that, in the upcoming case of Medellin v. Dretke, the 
Court may overturn itself yet again, for no other reason than that the 
International Court of Justice happens to disagree with our 
longstanding laws and legal principles. That case involves the State of 
Texas, and I have filed an amicus brief asking the Court to respect its 
own precedents as well as the authority of the people of Texas to 
determine its criminal laws and policies consistent with our U.S. 
Constitution. There is a serious risk, however, that the Court will 
ignore Texas law, ignore U.S. law, and ignore the U.S. Constitution, 
and decide in effect that the decisions of the U.S. Supreme Court can 
be overruled by the International Court of Justice.
  There are still other examples, other decisions, where we see Supreme 
Court justices citing legal opinions from foreign courts all across the 
globe--from India, Jamaica, Zimbabwe--the list goes on and on.
  I am concerned about this trend. Step by step, with every case, the 
American people may be losing their ability to determine what their 
criminal laws shall be--losing control to the control of foreign courts 
and foreign governments. And if this can happen with criminal law, it 
can also spread to other areas of our government and of sovereignty. 
How about economic policy? Or foreign policy? Or our decisions about 
security and military strategy?

  I think most Americans would be disturbed if we gave foreign 
governments the power to tell us what our Constitution means. Our 
Founding Fathers fought the Revolutionary War precisely to stop foreign 
governments from telling us what our laws say. In fact, ending foreign 
control over American law was one of the very reasons given for the 
Revolutionary War. The Declaration of Independence specifically 
complains that the American Revolution is justified because King 
George, and I quote, ``has combined with others to subject us to a 
jurisdiction foreign to our constitution, and unacknowledged by our 
laws.'' After a long and bloody revolution, we earned at last the right 
to be free of such foreign control. It was ``We the People of the 
United States'' who then ordained and established a Constitution of the 
United States, and our predecessors specifically included a mechanism 
by which only ``We the People of the United States'' could change it if 
necessary. And of course, every Federal judge and justice swears an 
oath to ``faithfully and impartially discharge and perform all the 
duties incumbent upon me . . . under the Constitution and laws of the 
United States. So help me God.''
  I am concerned about this trend. I am concerned that this trend may 
reflect a growing distrust amongst legal elites--not only a distrust of 
our constitutional democracy, but a distrust of America itself.
  First, it reflects distrust of our constitutional democracy.
  As every high school civics student learns, the job of a judge is 
pretty straightforward. Judges are supposed to follow the law, not 
rewrite it. Judges are supposed to enforce and apply political 
decisions, not make them. The job of a judge is to read and obey the 
words that are contained in our laws and in our judicial precedents--
not the laws and precedents of foreign governments, which have no 
sovereign authority over our Nation.
  I fear, though, that some judges simply don't like our laws, and they 
don't like the political decisions that are being made by the American 
people, through their elected representatives, about what our laws 
should be. So perhaps they would rather rewrite the law from the bench. 
What's especially disconcerting is that some judges today may be 
departing so far from American law, from American principles, and from 
American traditions, that the only way they can justify their rulings 
from the bench is to cite the law of foreign countries, foreign 
governments, and foreign cultures--because there is nothing in this 
country left for them to cite for support.
  Moreover, citing foreign law in order to overrule U.S. policy offends 
democracy, because foreign lawmaking is in no way accountable to the 
American people.
  There is an important role for international law to play in our 
system here in the United States, to be sure. But it is a role that 
belongs to the American people, through the political branches of the 
United States--to the Congress and to the President, to decide what 
role international law shall play in our legal system. It is 
emphatically not a role that is given to our courts. Article I of the 
Constitution gives Congress, not the courts, the authority to enact 
laws punishing ``Offenses against the Law of Nations.'' And Article II 
of the Constitution gives the President the power to ratify treaties, 
subject to the advice and consent and the approval of two-thirds of the 
Senate. Yet our courts are overruling U.S. law by citing foreign law 
decisions in which the U.S. Congress has had no role, and citing 
treaties that the U.S. President and the U.S. Senate have refused to 
approve.

  To those who might say there is nothing wrong with simply trying to 
bring U.S. law into consistency with other nations, I say this: This is 
not a good faith effort to bring U.S. law into global harmony. I fear 
that this is simply an effort to further a particular ideological 
agenda. Because the record suggest that this sudden interest in foreign 
law is political, not legal; it seems selective, not principled. U.S. 
courts are following foreign law inconsistently--only when needed to 
achieve a particular outcome that a judge or justice happens to desire, 
but that is flatly inconsistent with U.S. law and precedent. Many 
countries, for example, provide no exclusionary rule to suppress 
evidence that is otherwise useful and necessary to convict criminal 
defendants--yet our courts have not abandoned our constitutional rule 
on that topic. Very few countries provide for abortion on demand--yet 
our courts have not abandoned our Nation's constitutional jurisprudence 
on that subject. Four justices of the Supreme Court believe that school 
choice programs to benefit poor urban communities are unconstitutional 
if parochial schools are eligible, even though many other countries 
directly fund religious schools.
  Even more disconcerting than this distrust of our constitutional 
democracy is the distrust of America itself.
  I would hope that no American would ever believe that the citizens of 
foreign countries are always right, and that Americans are always 
wrong. Yet I worry that some judges may become more and more interested 
in impressing foreign governments, and less and

[[Page S3111]]

less interested in simply following American law. Indeed, at least one 
Supreme Court justice has stated publicly that following foreign 
rulings, rather than U.S. rulings, and I quote, ``may create that all 
important good impression,'' and therefore, and I quote, ``over time we 
will rely increasingly . . . on international and foreign courts in 
examining domestic issues.''
  This attitude is especially disturbing today. The brave men and women 
of our Armed Forces are putting their lives on the line in order to 
champion freedom and democracy not just for the American people, but 
for people all around the world. America today is the world's leading 
champion of freedom and democracy. Meanwhile, the United Nations is 
rife with corruption, and the United Nations Human Rights Commission is 
chaired by Libya.
  I am disturbed by this trend, and I hope that the American people 
will have a chance to speak out. I believe that the American people do 
not want their courts to make political decisions; they want their 
courts to follow and apply the law as it is written. The American 
people do not want their courts to follow the precedents of foreign 
courts; they want their courts to follow U.S. law and the precedents of 
U.S. courts. The American people do not want their laws controlled by 
foreign governments; they want their laws controlled by the American 
government, which serves the American people. The American people do 
not want to see American law and American policy outsourced to foreign 
governments and foreign courts.
  So today, I submit a sense of the Senate resolution, to give this 
body the opportunity to state for the record that this trend in our 
courts is wrong, and that American law should never be reversed or 
rejected simply because a foreign government or foreign court may 
disagree with it. This resolution is nearly identical to one that has 
been introduced by my colleague in the House of Representatives, 
Congressman Tom Feeney. I applaud his leadership and his efforts in 
this area, and I hope that both the House and the Senate will come 
together and follow in the footsteps of our Founding Fathers, to once 
again defend our right as Americans to dictate the policies of our 
government--informed, but never dictated, by the preferences of any 
foreign government or tribunal. And I ask that the text of the 
resolution be included at the appropriate place in the Record.

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