[Congressional Record Volume 151, Number 60 (Tuesday, May 10, 2005)]
[House]
[Pages H3105-H3110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
CONSTITUTIONAL GUIDELINES FOR SUPREME COURT DECISIONS
The SPEAKER pro tempore (Mr. Jindal). Under the Speaker's announced
policy of January 4, 2005, the gentleman from Texas (Mr. Poe) is
recognized for 60 minutes.
Mr. POE. Mr. Speaker, ``I solemnly swear that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to the
same; and I will faithfully discharge the duties of the office of which
I am about to enter, so help me God.''
Mr. Speaker, this is the judicial oath that justices of the United
States Supreme Court take to uphold America's Constitution, the sacred
manuscript our Nation was established upon, the foundation of who we
are.
Yet, Mr. Speaker, some of the same justices who preside over the
highest court in our land are systematically unraveling the threads of
the very Constitution they vowed to protect. In what amounts to a most
disturbing development, the United States Supreme Court continues to
flirt with the temptations of foreign court decisions and the lure of
opinions of international organizations. They do this in the
interpretation of our American Constitution.
Mr. Speaker, this trend is terribly troubling. Has the Supreme Court
lost its way?
As a former Texas judge for over 22 years, having heard 25,000
criminal cases, I took the same oath as our Supreme Court justices, to
uphold the United States Constitution. Never once did I make a decision
based upon the way they do things in other countries. My oath was to
our Constitution, not to the Constitution of the member countries of
the European Union, such as France. America should not confer with the
decisions of any of the hundreds of foreign powers on our planet. As
Anthony Scalia, our justice on the Supreme Court has said, ``those
decisions are irrelevant in the United States.''
In 1776, amidst a revolution, our forefathers signed the Declaration
of Independence which stated brazenly and boldly the 13 colonies desire
to dissolve political bonds with England. In this document, Mr.
Speaker, Thomas Jefferson penned among the list of grievances against
King George the following statement: He said of King George, ``He has
combined with others to subject us to a jurisdiction foreign to our
Constitution and unacknowledged by our laws.''
Mr. Speaker, 10,000 to 14,000 patriots over the course of 8 years in
the American War of Independence spilled their blood or died to secure
liberty for us and safeguard our constitutional rights.
{time} 2200
The purpose was to sever ties with England forever. Then, in 1812,
the British invaded the United States again. The British still wanted
America to be subject to the King and their ways. They burned this very
city, including our Capitol. President Madison and his wife, Dolly,
fled Washington, D.C. in the damp darkness of the dreadful night to
escape the invaders. The British were determined to retake this free
Nation of America and this very soil on which I stand today. Americans
defeated the British a second time to make them understand that we will
not do things the English way.
Now, justices in this land of America, across the street from this
very Capitol, use British court decisions and European thought in
interpreting our Constitution. What the British could not accomplish by
force, our Supreme Court has surrendered to them voluntarily. Has the
Supreme Court handed over our sovereign Constitution to other nations?
Mr. Speaker, has the Supreme Court lost its way?
The Constitution is the basis for who we are, what we believe, and
what our values are. My colleagues will notice, Mr. Speaker, the oath
our judges take is to the Constitution; not to the government, not to
the President. It is to the Constitution. That is because the
Constitution is the supreme authority of the land. It is our identity.
It is our path to justice for all Americans.
The Framers of the Constitution made clear their vision for the
Federal judiciary. Named in Article III behind both of the other
branches of government, the Founders intended a court system with a
narrow scope and restricted authority. As Alexander Hamilton explained
in one of the Federalist Papers, the judiciary, from the nature of its
functions, will always be the least dangerous to the political rights
of the Constitution, because it will be the least in its capacity to
annoy or injure them. He states that the judicial branch is, beyond
comparison, the weakest of the three departments of power.
Mr. Hamilton continued in his Federalist Papers, the executive
dispenses the honors, holds the sword of the community. The legislature
commands the purchases, prescribes the rules by which the duties and
the rights of every citizen are regulated. The judiciary, on the
contrary, has no influence over either the sword or the purchases, no
discretion, either of the strength or the wealth of the society, and
can take no active resolution whatsoever. It may truly be said to have
neither force nor will, but just judgment.
Mr. Hamilton was wrong. History now reveals that the Supreme Court
has become the most powerful of all the branches of government,
although it was intended to be the weakest. And the people of this
country cannot hold them accountable for their actions. Nonetheless,
Mr. Speaker, an alarming number of judges deem the Constitution a
bendable document, more like a catalog of suggestions rather than the
rule of law; a set of elastic principles which, at the end of the day,
can be easily interchanged with the judge's own personal policy and
emotional agenda. As one author on the topic of our judges has put it,
they see their role limited only by the boundaries of their
imaginations.
And in the case of consulting foreign statutes to determine rulings
here in the United States, a majority of our nine Supreme Court
Justices even encourage it. Justice Sandra Day O'Connor, for example,
has said that although international law and the law of other nations
are rarely binding on decisions in the United States and its
[[Page H3106]]
courts, conclusions reached by other countries and by the international
community should, at times, constitute persuasive authority in American
courts.
Well, Mr. Speaker, if they are rarely binding, who decides when they
are binding? Is this arbitrary justice? My question is, when do foreign
court decisions matter, and when do they not matter? Do our judges pick
and choose foreign decisions that they like and ignore those they
personally do not like? Do they pick and choose to get a desired
result?
Mr. Speaker, this is constitutional chaos. In one of her books where
she shares her reflections on being a Supreme Court Justice, she goes
on to say that she believes American judges and lawyers can benefit
from broadening their horizons. I know from my experience, she says, at
the Supreme Court that we often have much to learn from other
jurisdictions. We Supreme Court Justices will find ourselves looking
more frequently to decisions of constitutional courts, especially
common law courts that have struggled with the same constitutional
questions that we have. International law is no longer a specialty; it
is vital if judges are to faithfully discharge their duties.
Mr. Speaker, all judges, all lawyers in the United States take oaths
to faithfully discharge their duties to the United States Constitution.
None of us took an oath to faithfully discharge international law and
the duty to international law. Has the Supreme Court, Mr. Speaker, lost
its way?
Another judge on our Supreme Court, Justice Ginsberg, also subscribes
to the importance of international jurisprudence on the Court. She
thinks the premise is wrong that you only look to your friends. She has
asked why, if judges are free to consult commentary, restatements,
treaties, writings of law professors, law students and law reviews,
they should not analyze an opinion from, get this, the Supreme Court of
Canada, the Constitutional Court of South Africa, the German
Constitutional Court, or the European Court of Human Rights. In her
view, the United States judiciary will be poor if we do not both share
our experience with and learn from legal systems with values and a
commitment to democracy similar to our own.
On a C-SPAN broadcast last month, another Justice, sympathetic to the
use of international law and foreign court decisions, indicated that
the Supreme Court is faced with more and more cases in which the laws
of other countries apply. Where there is disagreement is how to use the
law of other nations where we have some of those very open-ended
interpretations of the word ``liberty,'' and interpretations of the
phrase ``cruel and unusual punishment.'' This Justice believes it is
appropriate in some instances to look to how other foreign courts may
have decided similar issues. I ask, Mr. Speaker, what difference does
it make how they do things in lands far, far away?
In 2002, Justice Paul Stevens in Thompson v. Oklahoma raised global
norms regarding a particular type of punishment in his opinions. He
states the conclusion that it would offend civilized standards of
decency to execute a person who was less than 16 years of age at the
time of his or her offense is consistent with the views that have been
expressed by respected professional organizations, by other nations
that share Anglo-American heritage, by leading members of the Western
European Community, the American Bar Association, the American Law
Institute, who have all formally expressed opposition to the death
penalty for juveniles.
Although the death penalty has not been entirely abolished, he says,
in the United Kingdom or New Zealand, in neither of these countries may
a juvenile be executed. The death penalty has been abolished in West
Germany, France, Portugal, the Netherlands, and all Scandinavian
countries, and is available only for exceptional crimes such as treason
in Canada, Italy, Spain, and Switzerland. He concludes by saying,
juvenile executions are also prohibited in the Soviet Union.
Mr. Speaker, regardless of how we feel about the execution of
juveniles, the question, Mr. Speaker, is not what they do in the Soviet
Union, but what does the United States Constitution say about this
issue. Has the Supreme Court, once again, lost its way?
The same year, in Atkins v. Virginia, the Court once again looked to
foreign courts; and while only 13 years earlier our Supreme Court
decided that decisions of foreign courts were not to enter into the
determination of sentencing in the United States, the Supreme Court did
the judicial flip-flop. Justice Stevens concluded in this case that
there is a national consensus in reaching his opinion. Does this mean
the end justifies the means?
In the footnotes explaining his decision, the Justices indicated they
looked to briefs filed by religious groups, psychologists, polling
data, and a brief offered by the European Union, a brief that was used
eventually as blanket consensus, the voice of the global community at
large. Well, what about the Constitution? Why not use the Constitution
as our guide and only guide in making decisions by the Supreme Court?
But, Mr. Speaker, perhaps the most egregious perpetrator of citing
foreign court opinions is Justice Kennedy. Mr. Kennedy continues to
write decisions hardly based on the Constitution, but on international
law. Which law is he beholden to? Is the Constitution not sufficient
for him? In 2003, in a high-profile case involving my home State of
Texas, the case of Lawrence v. Texas, Justice Kennedy referred to
international standards in the Court's consideration of Texas laws.
Revealing the Court's reliance on the views of a wider civilization,
the majority opinion was inspired by previous rulings of the European
Court of Human Rights. Well, who put the European Court of Human Rights
in charge of us?
This year, in March, Roper v. Simmons, writing for a 5-4 majority,
Supreme Court Justice Kennedy wrote, we have established the propriety
and affirmed the necessity of referring to the evolving standards of
decency that mark the progress of a maturing society to determine what
punishments are so disproportionate as to be cruel and unusual. In
making this decision, the majority judges looked to foreign lands to
interpret what cruel and unusual means in our Constitution. In
dissenting, Justice Scalia, Chief Justice William Rehnquist, and
Justice Thomas, on the other hand, said they do not believe that
approval of other nations and people should buttress our commitment to
American principles any more than disapproval by other nations and
people should weaken that commitment.
Mr. Speaker, I realize the Constitution is an old document, well over
200 years; but this idea of ``evolving standards of decency'' is simply
ridiculous. Values are timeless. American values are timeless. American
standards are timeless, and they are in the Constitution.
The list of decisions against our Constitution, Mr. Speaker, is a
deep cavern of vile destruction. Other verdicts handed down by the
Supreme Court include citations of legal opinions from foreign courts
in Jamaica, India, and the ultimate beacon of justice, Zimbabwe. Mr.
Speaker, has the Supreme Court lost its way?
Let me give my colleagues an analogy. If, as a judge, I had a thief,
a shoplifter appear before me who had stolen many times before and I
ordered that his hand be chopped off in the public square, I suspect
his attorney would object, saying, this violates the constitutional
provision of cruel and unusual punishment in the eighth amendment.
While the attorney would be correct based upon our Constitution, my
response could well be, well, Mr. Lawyer, they chop hands off in other
countries for this type of crime, so since other countries do it and
they find it logical, I will accept these foreign courts in making my
decisions.
Mr. Speaker, in Texas, I would have been removed from the bench for
such nonsense. So why do we tolerate our Supreme Court using this same
rationale going to foreign courts in their decisionmaking?
Mr. Speaker, these controversial decisions that have emerged from our
Supreme Court have prompted a growing contingent of former judges in
this body to join me in signing a letter to the Senate Committee on the
Judiciary. I, along with my fellow gentlemen from Texas, (Mr. Carter)
(Mr. Hall) (Mr. Gohmert), as well as the gentleman from Tennessee (Mr.
Duncan) and the gentleman from Alabama (Mr.
[[Page H3107]]
Aderholt), all former judges in their respective States, have urged our
Senate colleagues to consider a nominee's allegiance to the United
States Constitution and the sovereignty of the United States when
imparting their advice and consent role in the Presidential appointment
process in our Senate.
When any court in the United States, Mr. Speaker, begins to permit
foreign sentiments to ooze into its rulings and opinions, it
dangerously weakens our sovereignty. These irresponsible allowances
erode our unique political identity and the sound traditions upon which
American law is established. From the mere founding of our country, our
laws and courts have respected and honored the sovereignty of the
United States and the supremacy of our Constitution.
My colleagues will notice, Mr. Speaker, I am not discussing or
criticizing the results of the Supreme Court decisions and their
holdings.
{time} 2215
I have been careful not to comment on the results of these numerous
cases where the Supreme Court reaches out to foreign courts to make
their decision. While somewhat relevant, since these decisions are the
law of the land, the complaint is the process and method by which the
Supreme Court makes decisions. The use of foreign courts, emotions,
personal opinions, result-oriented decisions, personal agendas,
feelings and the opinions of focus groups is, as Justice Scalia says,
totally irrelevant. The only thing that matters is the Constitution.
Unfortunately, we now seem to have some jurists in our Supreme Court
who have lost their way, their balance. They have forsaken the process
founded by our forefathers. They are disregarding boundaries etched
into the foundation of our Constitution.
Justice Scalia may be one of the last strongholds we have against
judicial tyranny in today's Supreme Court. He understands the
importance in honoring the original meaning of the constitution, that
it is the supreme law of the land. He rightly maintains that foreign
pronouncements are totally irrelevant when it comes to our courts and
our Supreme Court in making their decisions.
Mr. Speaker, this is not a partisan issue. It is an issue of who will
stand with the Constitution and who will stand with foreign courts.
I urge my colleagues in both chambers to support measures that aim to
curb the way our Supreme Court makes its decisions, that they should be
responsible to the Constitution of the United States.
As Thomas Jefferson, author of the Declaration of Independence,
warned in an August 18, 1821, letter to a friend, Charles Hammond, a
lawyer who argued before the Supreme Court, he says, that is Mr.
Jefferson: The germ of dissolution of our Federal Government is in the
Federal judiciary, working like gravity by night and day, gaining a
little today, a little tomorrow, advancing its noiseless step like a
thief over the field of jurisdiction until all shall be usurped.
Mr. Jefferson was a prophet of what has become judicial anarchy. Some
northeastern legal scholars, intellectual elites that sit in cigar-
filled rooms agree with the ultimate decisions of the Supreme Court
justices, justices that use these foreign laws, because they like the
results.
But I warn these folks, the Supreme Court may not always make
decisions you agree with, and they may betray you by ignoring the
Constitution and citing foreign laws that create a different result
than you wish. Then you will cry: Return to the Constitution; return to
our sacred scripture. When your cries are made to our courts, you may
too find no one is listening.
As guardians of the Constitution, Mr. Speaker, as champions of the
separation of power, as accountants of the system of checks and
balances, as the stewards of this legislative branch, we must implore
our judiciary, our Supreme Court justices to reject the seduction of
comparable side glances as they interpret the laws of this land.
I ask the Supreme Court to come back home, home to the Constitution
and reject the lustful temptation of foreign countries and their laws.
I yield to the gentleman from Iowa (Mr. King) such time as he must
desire to speak on this very issue.
Mr. KING of Iowa. Mr. Speaker, I thank the gentleman from Texas (Mr.
Poe), the judge, for the opportunity to say a few words about the
future of this country, the history of this country and our beloved
Constitution, and appreciate this opportunity to be here on this floor
tonight.
As I watched the development here and the transition of history, and
I am 55 years into this life, a little over a half a century, and I was
raised with a deep and abiding love and respect for our Constitution
and for the rule of law, the fact that a law existed meant that the
judgment of the people had spoken. And according to the strong
directive of my father, I was to then adhere to that law and adhere to
that Constitution. And if I did not like the language that was there
and the intent of the Constitution or the law, it was my job to step
forward as a citizen of the United States and seek to change it; not to
ignore it, not to amend it in a fashion that did not have the will of
the people in support of it.
And so, today, Mr. Speaker, we have gone to this point where I look
back upon this transition, this transition that has taken place over
the 55 years of my life and the 45 or so years that I have paid
attention to what is going on in the United States of America, and I
have watched a dramatic transition take place within the judicial
branch of government.
And I want to acknowledge at the beginning of this discussion, the
gentleman from Texas (Mr. Poe) will know this, that I had the privilege
to sit down and have lunch with a group of Supreme Court justices
today, and I very much appreciate them and the other justices that
joined them. It was a very, very good gesture on their part to reach
out and open up a dialogue and give us an opportunity to speak about
and discuss the disagreements that we have between the legislative
branch and the judicial branch of government.
It is a natural tension that exists between these three branches of
government, and this legislative branch of government, which clearly
has its duties to write the laws; the executive branch of government
which has its duties to execute those laws, enforce those laws; and the
judicial branch of government whose job it is to interpret the laws,
interpret the Constitution. It is a natural tension that exists, and it
will go on as long as this is a great country. And it is a great
country.
And I want to compliment the justices of the Supreme Court for being
part of this effort to open the dialogue and give us an opportunity to
discuss our differences. And I look forward to those opportunities to
continue to sit down and have those discussions, and I will take
advantage of that.
But I have to say here tonight that I have watched a transition over
the last 55 years or so of my lifetime. And I would go back to a case
that would be about 1963, Murray v. Curlett, and that was the case when
Madeline Murray O'Hare became the most hated woman in America, and she
successfully went to the United States Supreme Court and removed prayer
from the public schools.
That, Mr. Speaker, I believe started us down the path, down the path
of bowing to the judicial branch of government, maybe the last time
that the American public really questioned and challenged the decisions
that were made over across the street in the Supreme Court building.
This country has accepted those decisions because they believe that
they do not understand the Constitution well enough to second guess a
judge, and they do not understand the letter or the congressional
intent of the law well enough to second guess a judge's decision to
overturn the clear directive and intent of Congress. That has happened
time after time after time.
And we have seen justice after justice reach out into foreign law,
reach into foreign law to find a conclusion that suits their intent and
their belief of how this country ought to be shaped and how it ought to
be formed. Murray v. Curlett, prayer out of the public, schools started
us down a slippery slope, a fast and slippery slide down into an abyss
which I do not know how we swim out of it.
And I asked this question, and I have asked it of the Chief Justice
directly, and that is, in case after case after case, we have seen
decisions made by
[[Page H3108]]
which we cannot recognize the Constitution any longer. One of those
cases would be the affirmative action cases that were before the
Supreme Court I believe it was a year ago last April 19. And in those
cases, I sat and listened to that. I went to hear profound
constitutional arguments. And where would you go in the world to hear
profound constitutional arguments except in the chambers of the United
States Supreme Court? There is no higher calling and no higher standard
for constitutional arguments.
And yet as I listened that day, I heard one, one constitutional
argument, actually relatively profound. The case had to do with
affirmative action. Chief Justice Scalia asked the question of the
Michigan attorneys: If we rule against you and it results in one
minority in your school, 100 percent minorities in your school or no
minorities in your school, what possible constitutional difference can
that make?
Now, the answer was long. But it was not clear. The question is clear
to me. He directed that question directly back to the Constitution,
which is where the entire oral argument should have focused. And yet it
happens less and less as I hear these arguments before the Supreme
Court because there is an entire industry that has been built up on
trying to analyze the particular personal viewpoints of each of the
justices. There is quite a history there to analyze, and quite an
industry that has been built up around that.
But the arguments that go to the Constitution itself are ever
diminished year by year, case by case, to the point where I believe
that the courts have, because of stare decisis, because of the belief
that once a decision is made, they should honor that decision of the
previous court, not overturn the decision of the previous court. I
could name you exceptions.
Stare decisis says that the Supreme Court is painting themselves into
a legal corner. And on the other side of that room is the doorway back
to the Constitution. But unless that paint dries, they cannot get back
out the door. And as long as they respect stare decisis, this respect
for a decision that is made by the previous decision of the court, the
paint never dries, and they are trapped further and further into a
corner that prohibits them from going back to the Constitution.
And so if you cannot get back to the Constitution, on what do you
base your decisions? Well, foreign law. Foreign law is a nice and
convenient decision that can be made. I have a list of some of these
here, Mr. Speaker, and it is quite an interesting list. Justice Breyer,
in his dissent, and I always give credit for dissent, Knight v. Florida
1999, A growing number of courts outside the United States courts that
accept or assume the lawfulness of the death penalty have held that
lengthy delay in administering a lawful death penalty renders ultimate
execution inhuman, degrading or unusually cruel.
Sounds a lot like some of the language in our Constitution. But how
could a lengthy delay in administering a death penalty change the
ultimate result of that?
If locking someone up in prison for an extended period of time is
cruel and inhuman, then would we not have to then release everyone that
is in our prisons?
And in the case of Pratt v. Attorney General of Jamaica, for example,
the privy council considered whether Jamaica lawfully could execute two
prisoners held for 14 years after sentencing. The council noted that
Jamaican law authorized the death penalty, and the United Nations
Committee on Human Rights has written that capital punishment is not,
per se, unlawful under the human rights covenant; Jamaican law, the
United Nation's Committee on Human Rights.
And then the Supreme Court of India has held that an appellate court
which itself has authority to sentence must take account of delay when
deciding whether to impose the death penalty. This cited by the Supreme
Court of the United States, Jamaican law, European, United Nations
Committee on Human Rights, Indian law, the Supreme Court of Zimbabwe,
and I quote, the Supreme Court of Zimbabwe, after surveying holdings of
many foreign courts concluded that delays of 5 and 6 years were
inordinate and constituted torture or inhumane or degrading punishment
or other such treatment. Reference to the Zimbabwe law.
This proclivity for citing foreign law, when there is a clear
directive to adhere to the Constitution and we have nothing else that
directs us as Members of Congress as Members, of the executive branch
who are sworn in or as Members of the United States Supreme Court, we
take the same oath to the Constitution of the United States. And this
Constitution is written and drafted and ratified by the people of this
country. We shall never have another.
There is not another circumstance in history that could be
reconstructed by anyone in this Chamber, by anyone in this city or
anyone in this country that I know that could go back and say, well, if
we lost this Constitution, we would just construct another one. We
would find a way to get together in the blue zones and in the red zones
of America, and we would draft up a Constitution that was living and
breathing, and it would be a document that better fit the day of our
age, and it would be something that would protect the interests of the
minority against the tyranny of the majority, or the rights of the
minority against the will of the majority. By the way, what protects
the constitutional rights of the majority against the whims of the
court?
And so, today, we have gone in my lifetime from a belief that this
foundational document of the Constitution, which I carry in my pocket
every single day, this Constitution that I believe is our covenant with
our Founding Fathers, our guarantee of rights and our guarantee of
freedom, that clearly spells out the responsibilities of each branch of
government.
And, by the way, you can read this document through and through and
through again. There is nothing in there that says separate but equal
branches of government. It clearly lays out the responsibilities of
each branch of government and, when read, gives the Congress the
responsibility to be the final decision-maker on the courts themselves.
And so, Mr. Speaker, I propose that we, as a Congress, have an
obligation, an obligation to defend this Constitution, an obligation to
speak our minds when we disagree with the decisions of the court, but
make a logical and a rational and a constitutional argument for our
side, and call upon the Chief Justice and the Supreme Court to adhere
to this Constitution, to adhere to their oath of office, to adhere to
the laws of this land and to reject the directive that they might think
they get when they travel to other lands, that intercedes with other
ideas, other concepts, other cultures.
We separated ourselves from Great Britain for a good reason 200 and
some years ago, and it was because we did not want to be Western
Europe, and we did not want to be Jamaica, and we did not want to be
Zimbabwe. We want to be a nation of free people, free people governed
by a Constitution that a free people have ratified, not governed by
foreign law.
And what is predictable about this foreign law? How can a citizen of
this country aspire to move forward and invest capital and invest time
and effort and build this future and be a good citizen of the United
States of America when they do not know when a decision might come down
from the Supreme Court that says, oops, there was a law over here in
Zimbabwe; maybe there was a law in Ghana. Maybe there was a law in
Costa Rica. Maybe there was a law in Russia, Israel, Belarus, anywhere.
{time} 2230
How can we have predictability in our Constitution and our law if the
courts can cite whatever, as the judge from Texas said, whatever might
suit their whim of the moment?
So I believe we have to adhere back to this Constitution because we
have migrated from its meaning. And even though the courts found in
Murray v. Curlett that there was this separation of the church and
State that was created there, took prayer out of the public schools.
And by the way, I do not believe the Constitution calls for that for a
minute. Once that decision was made and the letter of the Constitution
and the intent of the Founding Fathers was ignored and we began to
migrate away from the Constitution itself, we started down that
slippery slope.
So is this Constitution what our Founding Fathers believed it should
[[Page H3109]]
be? Did the Framers draft this Constitution to protect the rights of
the minority against the will of the majority, protect the rights of
humanity against all forces whatsoever? They believed that this
constitutional framework was for the gentleman and for me and for
everyone in this country. But it has changed. And there are a number of
people, in fact, I believe a growing number of people, that believe
this Constitution no longer means what it says; that it is a living,
breathing document, that nine Justices, a majority of nine Justices,
five of them unaccountable to the people, should direct this society
and this civilization.
But it is the vision of our Founding Fathers that those elected by
the people should direct this examination and that the Judges should be
ruling upon the letter and the intent of the Constitution, the letter
and the intent of the law. And that is as far as it goes.
If this Constitution does not mean what it says, then what purpose
does it have? It is either a living, breathing document that is
flexible and can be malleable and can be shaped by any Justice that
happens to have the good fortune to be appointed to the bench, or those
words written on this document in my jacket are sacred and they are
meant to be amended only by the people then whose description is in the
Constitution itself.
It is a living, breathing document or we are originalists that
believe in the original intent of this Constitution. If it is changed,
if it is not, what it says, it means, then what does, Mr. Speaker,
protect the rights of the minority against the will of the majority?
What protects all of our rights as citizens? What preserves this great
country if it can be shaped by the whim of the Judges?
This Constitution is either what I believe it is, and that is not a
living, breathing document, but a document that is fixed for all time
unless we amend it. And if it is not that, then the courts have turned
it into an artifact of history, just a transitional document to get us
from 1789 until today, where we could turn over the future of this
country to the people in the robes that make those decisions. And if we
do that, then we might as well board this place up and hand it over to
the courts for their staff because there will not be any function for
this legislature any longer.
I thank the gentleman for yielding to me. I appreciate the
gentleman's contribution to this cause.
Mr. POE. Mr. Speaker, I want to thank the gentleman from Iowa (Mr.
King) for his dedication to the Constitution, to making sure that the
Members of this body are committed to that and reminding the Supreme
Court that they have an obligation to that Constitution.
Mr. Speaker, I yield to the gentleman from Texas (Mr. Gohmert), a
former judge, a former appellate judge from east Texas. The east Texas
folks kind of think maybe a little differently than the Supreme Court
does on using foreign law to make decisions that are binding on the
rest of us. I yield to the gentleman from Texas (Mr. Gohmert).
Mr. GOHMERT. Mr. Speaker, I thank the gentleman from Texas (Mr. Poe),
the former judge from Houston.
I thank the gentleman from Iowa (Mr. King). I thought those were very
profound comments.
Mr. Speaker, I heard the gentleman from Texas (Mr. Poe) mention
something earlier and this was also touched on by the gentleman from
Iowa (Mr. King), but regarding the beginning of this Nation and how we
had separated ourselves from Europe, particularly in the War For
Independence that began with the 1776 Declaration of Independence and
how we won that war and we separated ourselves. And then of course the
Articles of Confederation did not work, and then 1789 we did have this
wonderful Constitution.
I had also heard the gentleman say we won yet again, the battle with
the British in the War of 1812. As the gentleman mentioned, here where
we are standing and actually back in Statuary Hall as it is now, that
was the old House Chamber and the British came up and they burned it,
and actually the middle part burned. It was wooden. And the gentleman
mentioned that we had defeated them. We ran them out after they burned
much of Washington. I would like to expand on that.
I had thought, an old history major like me, I thought our American
forces rallied and drove the British out in 1814 after they burned much
of the town. But apparently the American forces were in such disarray
they were in no situation where they could have allied and defeated the
British at that time. We had some help at that point.
It turns out the night they set what is now Statuary Hall and the old
Senate Chamber on fire, there was a big rain storm that came that put
out the fire that kept the fire from completely destroying the building
which left enough that they could work from afterward.
It was not American troops the next day and after that drove the
British troops out. But as it turns out there was an incredible wind
storm that arose. And it was of such force and such magnitude, it is
given credit for killing 30 British troops. It knocked British cannons
off their mounts. It created a great deal of confusion. It played a
part in the accidental explosion of the British gunpowder statutes. It
created such chaos the British fled on their own because of those acts
of nature.
Well, as you know, insurance companies would call those acts of God,
and I would tend to agree with them. Those were acts of God. I would
like to think the Americans rallied. They could not do it. There was a
higher power involved. But when we look at this issue, the gentleman
took the oath to the Constitution. I took an oath to support and defend
the Constitution. I took that same oath when I went into the United
States Army. I spent 4 years on active duty.
It is worth noting in a letter to Abigail Adams dated September 11,
1804, Thomas Jefferson was very concerned after the decision in Marbury
v. Madison; he cautioned that judicial review would lead to a form of
despotism. Judicial review is not a power explicitly granted in the
U.S. Constitution. But in Marbury v. Madison, the court inferred this
power based on the fact that Constitution is the supreme law of the
land. But judges should always remember that the Constitution itself is
the supreme law of this land and that each judge should never forget
their oath to uphold the supreme law of the land and not be citing the
law from other jurisdictions, from other lands that have nothing to do
with our Constitution.
I tell you that Justice Scalia is an amazing intellect. In the Roper
v. Simmons case, I do not take issue here with the outcome of the case,
but for our purposes I would like to take issue and I think it is
critical we take issue with the methodology in arriving at their
opinion. And Justice Scalia did that in his dissent on behalf of
himself and Chief Justice Rehnquist and also Justice Thomas.
He said this, this is just an excerpt, ``In urging approval of a
Constitution that gave life tenured judges the power to nullify laws
enacted by the people's representative, Alexander Hamilton assured the
citizens of New York that there was little risk in this since 'the
judiciary has neither force nor will but merely judgment.' ''
That is from the Federalist No. 78, page 465.
Hamilton had in mind a traditional judiciary ``bound down by strict
rules and precedents which served to define and point their duty in
every particular case that comes before them.''
Bound down indeed, says Scalia. What a mockery today's opinion makes
of Hamilton's expectation, announcing the Court's conclusion that the
meaning of our Constitution has changed over the past 15 years. Not,
mind you, that this Court's decision 15 years ago was wrong, but that
the Constitution has changed.
The Court reaches this implausible result by purporting to revert not
to the original meaning of either amendment, but to ``the evolved
standards of decency'' of our national society.
It then finds, and this is Scalia still talking, it then finds on a
flimsiest of grounds that a national consensus which could not be
perceived in our people's laws barely 15 years ago now solidly exists.
Worst still, the Court says in so many words that what our people's
laws say about the issue does not in the last analysis matter. This is
Scalia still quoting:
``In the end our own judgment will be brought to bear on the question
of acceptability of the death penalty under the eighth amendment.''
[[Page H3110]]
Now, the Court has thus proclaimed itself the sole arbiter of our
Nation's moral standards, and in the course of discharging that awesome
responsibility, purports to take guidance from the views of foreign
courts and legislatures. Because I do not believe that the meaning of
our eighth amendment, any more than the meaning of other provisions of
our Constitution should be determined by the subjective views of five
members of this Court and like-minded foreigners, I dissent.
This is Justice Scalia.
Similarly, in Roper, Justice O'Connor called on the Court to
substitute basically its own moral judgment for ``the judgment of the
nations' legislatures.''
The majority, however, persists in imposing its will on the States
and backs its decision up by citing the mandates of foreign
legislatures.
The usurpation of the voice of the people began roughly with New York
v. Lochner, and the word Lochnerization has since been used to describe
cases in which the judiciary overrides the democratic law-making
authority and imposes its own morality, or in some cases lack of
morality, on the people.
Lochner was a 1905 case that has since been overruled; but in this
case, the Supreme Court told the New York legislature it could not
regulate certain items.
So this usurpation continued with Roe v. Wade and again most recently
in Lawrence v. Texas.
Now, as the gentleman from Iowa (Mr. King) had mentioned, there was a
very nice lunch today. And the Supreme Court was very gracious in
reaching out and having members of the Committee on the Judiciary.
There were Senators. There were some of us from the House Committee on
the Judiciary. There was a few staff members. And we heard from Justice
Stevens, Justice O'Connor, Justice Breyer, Justice Kennedy and Justice
Souter.
I would say those are very, very hard-working, well-meaning Justices.
But good intentions are not enough. We know from history itself when we
think about the words ``this means peace in our time,'' Chamberlain had
the best of intentions. He meant well. He thought he was doing what was
best for the world, and what he was doing was giving homage and helping
a tyrant like Hitler. And so good intentions simply are not enough.
{time} 2245
That oath must be upheld. So that is why I do take issue with the
rationale in these cases. These are fine judges, but they have gone
astray when they venture out beyond their oath and neglect that from
which they have sworn to uphold.
If I might, one of the most frustrating things in this body has been
the way people can play fast and loose with what is real, absolute
truth. The Constitution is truth. The Constitution does not change. It
should not just go flittering here and there, depending on the whims of
the Court.
Just like I heard prior to us coming in, the prior presentation about
Social Security, and I could not help but note when there was talk of,
well, in 2017 these old Republicans, they are talking about it is going
bankrupt, and that is just all a facade of sorts, basically
paraphrasing. Then the words were said, but it is actually in 2017 when
there is more cash going out than comes in. We fall back on these
trillions of dollars that are in cash bonds that will continue to earn
interest. Cash sounds like there is cash there. There is nothing there.
There are IOUs. There are Federal IOUs, and to say they will continue
to draw interest, they stick more IOUs in there and say there is your
interest. That is just so disingenuous. It is so misleading, and even
though I really believe those people saying those things have the best
of intentions, they are doing great harm to the Nation by misleading.
In the same way, the Court has the best of intentions. They mean
well. They think they are doing this great service. They go to the
different seminars and they speak in different places, and they hear
these different things from other people who maybe look down on our
laws for this or our laws for that. That has nothing to do with our
Constitution.
I really appreciate the gentleman from Texas (Mr. Poe) yielding to me
to say some of these things that are so overwhelming in my heart and
soul, as I look to the days ahead. I know they trouble my colleague
greatly and I know that both of us came from the same school, if you
are going to legislate, by golly, take off the robe, come off the
bench, run for the legislature and if, God willing, you get elected,
then you can come legislate. I agreed with you on that. We did the same
thing. We are here, and hopefully America will help bring the justices
back to reality, and the reality is they took an oath to support and
defend the Constitution.
So I appreciate that time, and let me just say, there has been a lot
of misleading information saying that some people, by their comments,
they are doing great harm and inciting violence. I tell you what, as a
judge I know you were tough and I was, too. Anybody that threatens,
attempts to use force, attempts to use violence of any kind, they need
to go to prison when it comes to our courts.
That is why we are pushing the bill to make the sentences even
tougher for anybody that is involved in that, but by golly, our
Constitution promised us that First Amendment right to freedom of
speech. Neither the Supreme Court nor anybody else should restrict what
the Constitution and the Bill of Rights has granted to us. God willing,
they will not and America will not let them do it in a nonviolent way.
I thank the gentleman for yielding.
Mr. POE. Mr. Speaker, I want to thank the gentleman from Texas (Mr.
Gohmert) for his kind words and for his insight into this important
issue.
Mr. Speaker, as most Americans go about being concerned about jobs,
Social Security, the environment, health care, crime, outsourcing, all
of those things are important. Many of those issues will eventually end
up in our courts. Some of those cases will find their way to the
Supreme Court, and while this issue is somewhat complex, it is not that
difficult to understand.
The Constitution is the Bible for our democracy. Words mean
something, Mr. Speaker, and the words of the Constitution are words
that we must live by, that we must stand by and that we must defend.
I hope that most Americans, regardless of who they are, what their
political beliefs are, understand that our Constitution came about
because of sacrifices of Americans, many of whom we will never know the
names of, that fought first in the War of Independence and numerous
wars after that, because we are a unique land, Mr. Speaker. We are a
unique people, Mr. Speaker, and the pinnacle of our uniqueness is the
Constitution of the United States.
Every public official in this country, school board members, police
officers, city councilmen, firefighters, members of the State
legislatures, judges throughout our entire Nation and Members of this
body took an oath to uphold and defend the Constitution of the United
States. That is who our oath and our allegiance is made to, and all we
are asking, Mr. Speaker, is that the Supreme Court come back home,
follow their oath, be beholden to the United States Constitution and
not to foreign countries.
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