[Congressional Record Volume 151, Number 77 (Monday, June 13, 2005)]
[House]
[Pages H4391-H4394]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  HAS THE SUPREME COURT LOST ITS WAY?

  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 rise tonight to ask a question, and that 
question is relatively simple. By what legal authority do justices of 
our Supreme Court use foreign world tribunals, global opinion, and the 
philosophy of European elites in making their decisions, those 
decisions that affect all Americans of this Nation? By what license, by 
what authority do members of America's highest court ignore our 
Constitution, the Constitution they took an oath to defend, and why do 
they cite foreign court decisions at all, decisions from England, the 
European Union, the World Court, Belgium, and numerous other nations? 
The Constitution clearly does not give them the power to abandon the 
scriptures of the Constitution. So where do they obtain such authority? 
Mr. Speaker, has the Supreme Court lost its way?
  I imagine that these justices wonder who I am to question them and 
their use of foreign court decisions in making laws that apply to the 
rest of us. With all due respect, Mr. Speaker, I am a citizen of the 
Republic just as they are. I am an elected representative of this House 
that represents the people. Furthermore, I possess a loyal and lengthy 
relationship with the law. I am a former instructor in constitutional 
law. I was a trial prosecutor for 8 years, trying every type of 
criminal case from theft to kidnapping to capital murder, including 
cases where the death penalty was assessed and executions were actually 
carried out.
  But more recently, I spent 22 years as a felony court trial judge in 
Houston, Texas. I heard over 20,000 criminal cases. In fact, I suspect 
I heard more criminal cases in 1 year than all the nine judges of the 
Supreme Court decided in an equal amount of time. As a criminal court 
judge, I used the Constitution, particularly the first 14 amendments, 
every day. I made decisions that affected people, real people, 
defendants, victims, and the community. Those decisions affected those 
individuals for the rest of their lives. I determined whether 
individuals should lose their property, their liberty, and their 
freedom. Sometimes the decisions I made even resulted in those 
individuals losing their life. Yet every one of those 20,000 cases was 
rooted in the United States Constitution.
  Individuals who came to my court, whether they were defendants, 
victims, or members of the community, knew that the basis of all 
American law is in the Constitution. Not my personal opinion, not the 
rulings of foreign nations, and not the World Court. Not even what the 
French think. It is the Constitution that gives all courts from trial 
courts to the courts of appeal their foundation, their identity. If I 
had used any other law but that of the Constitution, I would have been 
removed from the bench.
  In the jury trials over which I presided, the jury too would take an 
oath to follow the law and the evidence. They were to internalize the 
law of the Constitution and make their decisions. They were expected to 
decide the case with domestic law, our law, not the law in some other 
nation.
  Mr. Speaker, if our Supreme Court uses foreign court decisions, why 
cannot our trial courts use foreign court decisions in their opinions? 
If the Supreme Court justices are our example, why cannot that example 
be followed by other judges in America? Is it not good for the gander 
what is good for the goose?
  Using foreign court decisions across the board would create, of 
course, judicial chaos, judicial anarchy. But yet the Supreme Court 
does exactly this. Why should the Supreme Court be left to its own 
devices? If there is any other standard other than the Constitution, 
than what is next?
  Mr. Speaker, looking to foreign court decisions is as relevant as 
using the writings in ``Reader's Digest,'' a Sears and Roebuck 
catalogue, a horoscope, my grandmother's recipe for the common cold, 
looking at tea leaves, star gazing, or the local gossip at the barber 
shop in Cut N' Shoot, Texas. Mr. Speaker, has the Supreme Court lost 
its way?
  Also, how do our justices know which foreign decisions they will 
embrace and which ones they will reject? Why have they discriminated 
and not used the decisions of our neighbors in South and Central 
America or even Mexico? I have personally witnessed trials in Russia 
and in China. Why not use those courts' decision in determining 
American jurisprudence? Who exactly decides what will be used to 
decide? Is there any longer predictability or uniformity in our legal 
system?
  Mr. Speaker, many of the judicial matters for which our justices 
consult the opinions of other nations deal with the issue of cruel and 
unusual punishment. That is a concept addressed in our very own 
Constitution. Just like the provisions for a jury trial are in our 
Constitution. Now, I ask this question: If the Supreme Court justices 
look to foreign courts to define what should be cruel and unusual 
punishment in our Nation, then I ask what is to restrain them from 
determining that our guarantee of a jury trial should not be modified? 
After all, many of the international entities that these

[[Page H4392]]

justices confer with on judicial principles do not even subscribe to 
jury trials. Europeans use tribunals. In fact, they disdain the concept 
of the jury trial. What is next? Will someone on the Supreme Court 
conclude that the American jury trial system is outdated and should be 
abolished because it is not the European way?
  Perhaps, Mr. Speaker, Justices Anthony Kennedy, Stephen Breyer, Ruth 
Ginsburg, David Souter, and Sandra Day O'Connor are suffering from the 
Black Robe disease, an incapacitating, invasive infection imported from 
Europe. There is a cure to the Black Robe disease, however. It is a 
dose of the Constitution. A strong dose of our United States 
Constitution.
  Mr. Speaker, trial judges, like I was once was, deal with real people 
every day. Many of our Supreme Court justices, with all due respect, 
have for the most part only handled cases on review and on appeal. The 
consequences of our Constitution occur in our trial courts. Having been 
down there in the mud and the blood and the beer with people, I have 
seen the impact of the Constitution on the lives of Americans. We call 
those consequences justice. Our Supreme Court justices deal in judicial 
theory, judicial thought. Simply put, it is judicial review. We are 
talking about the fundamental difference between the original 
applications of the law and the trenches in a trial court versus the 
pontifications about the law on the ``mount.'' As a side note, the 
Supreme Court should not make law. Their duty is to review the 
Constitution, not revise it, not reinvent it, and certainly not rewrite 
it.
  The Constitution, Mr. Speaker, is the people's document. It is 
ordained by and subject to the will of the people. It should not be 
meddled with by anyone, including members of the Supreme Court. If we 
believe the Constitution delivers justice, does not injustice, on the 
other hand, flow from calling upon standards like foreign courts, 
global norms, and international organizations?
  Mr. Speaker, I do not criticize the results of the Supreme Court 
decisions. No one respects the role of the judiciary more than I do. My 
grave concern, however is rooted in the process and method by which the 
Supreme Court makes those decisions that affect the rest of us.

                              {time}  2200

  Their use of foreign court opinions in interpreting American laws. 
How can the result be fair if the basis for the result is something 
other than the Constitution?
  Mr. Speaker, a historical review of a few Supreme Court decisions is 
in order. In Thompson v. Oklahoma, Justice John Paul Stevens maintained 
it would be offensive to civilized standards of decency to execute a 
person who was less than 16 years of age at the time of the offense.
  Referencing the views of other nations that share Anglo-American 
heritage, as well as leading members of the Western European community, 
he had tremendous confidence in this decision. Further citing the 
abolishment of the death penalty in nations like West Germany, France, 
Portugal, the Netherlands, all Scandinavian countries, and the Soviet 
Union, as well as the scant use of that penalty in New Zealand and the 
United Kingdom, Justice Stevens suggested Americans should consider 
global norms in determining our system of criminal punishments. By what 
authority does he use these nations as an example for American law?
  Mr. Speaker, has the Supreme Court lost its way?
  When we hear, as in this case, Mr. Stevens' reference to the United 
Kingdom's practices, it makes one wonder whether he recalls his high 
school American history class. I suspect more history is in order at 
this point.
  While engaged in an intense revolution in 1776, our forefathers 
signed the Declaration of Independence, which boldly sets out the 13 
colonies' desire to disband their political union with England forever. 
In that document, which is just down the street from this building, 
Thomas Jefferson penned among the list of grievances against King 
George of England that he combined with others to subject us to a 
jurisdiction foreign to our Constitution and unacknowledged by our own 
laws.
  Americans, Mr. Speaker, fled from England and Europe because they did 
not want to be subject to those unfair laws.
  Mr. Speaker, over the course of 8 years in the American War of 
Independence, patriots spilled blood to secure liberty for us and 
preserve constitutional rights. Their will was to permanently cut the 
ties with England.
  We won the war for American independence, but in 1812 we had to do it 
all over again, because the British invaded the United States once 
again because they still wanted America to be subject to the King of 
England and the law of England. The British were resolute on the 
recapture this free Nation of America. They even burned this city. They 
burned this very Capitol, the symbol of democracy. Americans, however, 
defeated the British for a second time, showing them that we will not 
do things the English way, the European way or any way except the 
American way.
  Nonetheless, justices here in America across the street from this 
Capitol choose to use British court decisions and European thought in 
interpreting the Constitution of this country. What the British never 
could accomplish by force has our Supreme Court raised the white flag 
and surrendered to them voluntarily. Has the Supreme Court become like 
a Benedict Arnold and betrayed the Constitution for the rule of the 
British empire?
  Let us move on to other decisions by our Supreme Court. In Atkins v. 
Virginia, the justices once more glanced across the seas toward foreign 
courts, and although over a decade earlier our Supreme Court decided 
that decisions of international courts were not to be used in the 
determination of sentencing in the United States, the Supreme Court did 
a judicial backflip. The justices in this case now in this particular 
matter listened to the voice of the European Union and the global 
community at large in making this inconsistent decision.
  I ask once again, why not just use the Constitution? Is it because 
the Constitution does not allow them to do what they do, so they grab 
European law to justify the decisions that are imposed on the rest of 
us? Has the Supreme Court lost its way?
  Now let us turn to a case in my home State of Texas, the case of 
Lawrence v. Texas. One of the most egregious perpetrators of citing 
foreign court decisions is Justice Kennedy. Justice Kennedy referred to 
international standards in the court's decision and consideration of 
Texas laws in Lawrence v. Texas. In this instance, writing for the 
majority, he clung to a previous ruling handed down from one of the 
most excellent high courts, the European Court of Human Rights.
  Mr. Speaker, people in Texas do not care what the European court says 
about much of anything, but they do care what the Constitution says. 
Why are we looking to Europe at all, with its not-so-glamorous history 
and the long lamentable catalogue of human conduct. Europe is no 
righteous stalwart of human rights.
  Europe, you remember. That part of the world that brought us two 
world wars in the last century. That part of the world where history is 
littered with episodes of massive religious intolerance and persecution 
of races. That part of the world where political murder and drawing and 
quartering were done for entertainment. All the while, a poor man could 
be hung for killing the king's deer.
  Why do we turn for advice to that civilized world? Is that not why we 
established our Nation to begin with? Is that not why we established 
the Constitution of the United States?
  Just recently, in April, the Supreme Court heard Small v. United 
States. In 1992, Gary Small shipped several multi-gallon electric water 
heaters from the United States to Japan. Japanese custom officials 
searched the container and they uncovered rifles, numerous 
semiautomatic pistols and several hundred rounds of ammunition. So he 
was tried and convicted of violating Japanese customs and weapons laws 
and he went to jail in Japan.
  Once he got out of that Japanese jail, however, about one week after 
he got out, he came to the United States and purchased a 9 millimeter 
pistol. Following a search of his residence, his vehicle and his 
business, U.S. Federal authorities discovered this .380 caliber pistol 
and several hundred rounds of ammunition. Deeming a convicted gun 
smuggler apprehended with additional

[[Page H4393]]

ammunition could constitute a danger to society, Federal prosecutors, 
using common sense, prosecuted him under a U.S. statute which says ex-
convicts for weapons violations may not possess guns.
  This statute, passed by this Congress prohibits, ``Any person 
convicted in any court of a crime punishable by imprisonment for a term 
exceeding a year to possess any firearm.'' Notice the statute says any 
court, it does not say U.S. court or state court, but any court.
  Nevertheless, when this case went on appeal, the justices of the 
Supreme Court trumped the law, a law that is on our books, on America's 
books. They concluded that Congress ordinarily intends its statutes to 
have domestic, not foreign application. They determined that involving 
foreign convictions would raise the possibility an individual may not 
have the entire fairness of the American legal system.
  Now it appears the Supreme Court is inconsistent on which foreign 
decisions they will follow and which ones they will not. Is this the 
law of chaos? Is this the law of arbitrary decisions?
  Just as a side note, Mr. Speaker, the Japanese Constitution was 
written for the most part by General Douglas MacArthur after the end of 
World War II.
  In any event, something is amiss. This is perplexing. It is appearing 
that the Supreme Court is becoming inconsistent on which foreign laws 
they will apply and which ones they will not. With this type of 
reasoning, when do we accept foreign court opinions and when do we 
ignore them? Is there any rhyme or reason to this arbitrary justice?
  In a rare public debate, Justice Anthony Scalia rightly asked his 
colleague Justice Breyer this question: ``Do we just use foreign law 
selectively when it agrees with what the justice would like the case to 
say? You use that foreign law, and when it does not agree with you, you 
ignore that foreign law. Nevertheless, the use of foreign law marches 
on.''
  The Supreme Court has also used the law of Jamaica in deciding cases 
to get a desired result, a result that we in America have to follow.
  Further, when the Supreme Court justices have cited opinions from 
foreign courts in far away lands like that bastion of civil rights, 
Zimbabwe, was that based on an overriding confidence in the inherent 
standards of fairness in the country of Zimbabwe and its legal system?
  Mr. Speaker, that dog just will not hunt. The last time I checked, 
Zimbabwe was an authoritarian government ruled by a cold and callous 
conniving Robert Mugabe, who oppresses political challengers, civil 
rights activists and jails representatives of the media. It appears the 
Supreme Court may have lost its way.
  It also appears that some of the justices have no intention of 
curbing this arbitrary and alarming habit any time soon. The black robe 
disease is spreading. According to Justice O'Connor, the Supreme Court 
will rely increasingly on international and foreign courts in examining 
domestic issues. Why? Why do that? Well, she says, because the 
impressions we create in this world are important.
  It sound like the justice makes her decisions based upon the opinions 
of a worldwide focus group.
  Listening to Justice O'Connor, one would think the Supreme Court is 
the agent of a popularity contest. In Justice O'Connor's view, ``The 
world really is growing together, through commerce, globalization, the 
spread of democratic institutions, immigration to America. It is 
becoming more and more one world of many different kinds of people, and 
how they are going to live together across the world will be the 
challenge, and whether our Constitution and how it fits into the 
governing documents of other nations will be a challenge for the next 
generations.''
  Mr. Speaker, this defies common sense.
  Justice Breyer argues that for years, people all over the world have 
cited the Supreme Court, why do we not cite them occasionally and give 
them a leg up, so they may then go to some of their legislators and 
others and say, see, the Supreme Court of the United States cites us.
  Well, why not just cite Reader's Digest? Mr. Speaker, this defies 
common sense.
  Justice Scalia concedes foreign authorities may prove useful in 
devising a Constitution, but not interpreting the Constitution. In 
fact, the Federalist Papers, which flush out many of the particulars 
concerning the Founding Fathers' vision and what they thought about 
America and our Constitution, has discussions of systems of government 
from other countries, for example, Switzerland and Germany. But there 
is a difference in using foreign courts and foreign thought to write a 
Constitution and using foreign thought and courts to interpret our 
Constitution now that it has been established.
  Justice Scalia asks, why? Why is foreign law relevant to what 
American judges do when they interpret our Constitution? He goes on, 
answering his own question. The court's discussion of these foreign 
views is meaningless. It is dangerous, since this court, talking about 
the Supreme Court, should not impose foreign moods, fads or fashions on 
Americans.
  But that is what happens. That is what happens when our Supreme Court 
cites foreign courts in making its decisions about the United States 
Constitution.
  Justice Scalia's assessment, Mr. Speaker, is further echoed by the 
Chief Justice of our Supreme Court, William Rehnquist, who in a 
dissenting opinion of Atkins v. Virginia wrote, ``The viewpoints of 
other countries simply are not relevant, and that global notions of 
justice are, thankfully, not always those of our people.''
  One could even travel an additional mile, as Justice Clarence Thomas 
has, to suggest that citation of foreign authorities really reflects a 
sign of weakness, an admission that the position for which the foreign 
authority is cited really lacks support in the United States legal 
sources, specifically lacks support in the Constitution.
  Our Constitution is sacred, Mr. Speaker. It is not a mere list of 
suggestions. Its values are timeless. The Constitution is complete. It 
needs no help from foreign courts. America's standards are timeless, 
and they are in our very own Constitution.
  Mr. Speaker, this is not a Democrat or a Republican, liberal or 
conservative issue. It is an issue of stand with the Constitution and 
who will go the way of the wayward foreign courts.
  When asked during a recent ABC interview whether a day will come when 
the Constitution will no longer be the last word on the law, Justice 
O'Connor shared the following. She said, ``Well, you always have the 
power of entering into treaties with other nations, which also became a 
part of the law of the land. But I can't really see the day when we 
won't have a Constitution in our Nation.''

                              {time}  2215

  While Justice O'Connor hardly predicts the dark and dreary demise of 
America's Constitution, her words, Mr. Speaker, are sad. Her words fall 
far short of assuring us that forever and always the U.S. Constitution 
will be the lifeline of our land's existence. The more we hear from our 
Nation's top jurists like Justice Ginsberg that ``our island'' or 
``lone ranger mentality is beginning to change,'' and that they ``are 
becoming more and more open to comparative and international law 
perspectives, it concerns me a great deal. The Supreme Court has lost 
its way, and the Black Robe disease is still infecting our court. 
People speak of the independence of the judiciary. Mr. Speaker, that is 
a legal myth. A judiciary cannot be independent of the Constitution 
but, rather, it must be dependent upon its words.
  Mr. Speaker, let us in this body, as fellow defenders of the 
Constitution of the United States, help all people, including those in 
the Supreme Court, remember our heritage. And until they decide to 
rejoin the cause of championing our Nation's identity, let us 
purposefully grip our Constitution with both hands. The Constitution 
does not give judges, any judges, the authority to use anything as a 
basis for their decisions except that very Constitution.
  Thomas Jefferson, who I cited earlier in writing the Declaration of 
Independence, years later, in 1820, saw the bleak future for our 
judiciary and predicted future judicial subversion. He said, ``The 
judiciary of the United States is the subtle core of individuals and 
miners constantly working underground to

[[Page H4394]]

undermine the foundations of our fabric. A judiciary independent of a 
king or executive alone is a good thing, but independence of the will 
of the Nation is a travesty.'' And that will of the Nation, Mr. 
Speaker, is the Constitution uttered straight from the will of the 
people. Let us remember some of its words. How about the first words of 
the Constitution to bring us back, back home, back to a perspective of 
our law. Those words that say, ``We, the people of the United States, 
in order to form a more perfect union, establish justice, ensure 
domestic tranquility, provide for the common defense, promote the 
general welfare, and secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Constitution for the United 
States of America.''
  The Constitution belongs to the people. It is ordained by the people. 
It does not belong to the Supreme Court for them to bend, rewrite, 
reinvent, or ignore it under any circumstances. Section 1 of the 
Constitution dictates that ``The judges, both of the Supreme Court and 
inferior courts, shall hold their offices during good behavior. I ask 
this question: Mr. Speaker, does citing foreign court opinions 
constitute good behavior? History will reveal whether it does or does 
not. If, however, I carried on like this in my courtroom in Texas, I 
would have been removed from the bench, and rightfully so. People from 
where I come from would not stand for a judge citing foreign courts to 
make decisions that affect Americans.
  Perhaps the Justices, Mr. Speaker, should think long and hard about 
the meaning of good behavior. Serving this Nation is a privilege; it is 
not a right. We are all accountable to the Constitution that have taken 
an oath to defend the Constitution.
  All of us in this body, this House of the people, this House of 
Representatives took an oath, an oath that people throughout the lands 
have taken, people from school boards, police officers, firefighters, 
city councils, mayors, big cities, and little cities, legislators, 
Members of Congress; all judges, State, local, and Federal, and the 
judges of the Supreme Court. We have all taken the same simple and 
solemn oath, to preserve, protect, and defend the Constitution of the 
United States. We owe it to the American people, we owe it to the 
Constitution, to follow that oath. That is our duty. That is our 
obligation, and we can do nothing but follow that oath.

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