[Congressional Record Volume 152, Number 84 (Monday, June 26, 2006)]
[House]
[Pages H4523-H4524]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       FOREIGN LAW IN U.S. COURTS

  Mr. STEARNS. Mr. Speaker, with the Fourth of July celebration next 
week, it is important to again remember why we fought for independence, 
namely, to free ourselves from foreign domination.
  I fear that the Supreme Court's appeal to foreign legal practice has 
headed us down a slippery slope, down which our rapid descent could 
hurt the values we hold so dear.
  In fact, to measure the standards of our Constitution by foreign 
opinion is to believe the false premise that other nations are evolving 
toward better answers than we are capable of finding ourselves. If we 
begin thinking that way, surely we will cease to be Americans.
  In 2003 in Lawrence v. Texas, five Supreme Court justices created a 
new right to sodomy based largely on legal precedents from the European 
Convention of Human Rights. In his dissenting opinion on this ruling, 
Justice Scalia agreed with what I am trying to point out in this speech 
by saying, he ``expects and fears that the court's use of foreign law 
in the interpretation of our Constitution will continue at an 
accelerating pace.''
  Later, in the 2005 Roper v. Simmons case, the United States Supreme 
Court found juvenile execution to be unconstitutional. In 
deliberations, Justice Sandra Day O'Connor claimed that the United 
States is the only country in the world that continues to give the 
juvenile death penalty official sanction. She allowed international law 
to override her own decisionmaking abilities. In the majority decision, 
Justice Kennedy stated that using foreign law ``does not lessen our 
fidelity to the Constitution or our pride in its origin to acknowledge 
that the affirmation of rights by other nations and people simply 
underscores the centrality of those same rights within our heritage of 
freedom.''
  Though it may be proper to acknowledge the weight of foreign opinion 
against the juvenile death penalty, should it be the basis for American 
law? Justice Ginsburg, one of the most prominent advocates of using 
international opinion in U.S. courts, recently delivered a speech at 
the Constitutional Court of South Africa. She essentially concluded 
that she and other justices have the authority to change the 
Constitution as they see fit, deferral to foreign laws and rulings 
being a key part of their creative process. She insisted that U.S. 
jurists honor the Framers' intent to ``create a more perfect union,'' 
which would allow justices to alter the Constitution, to keep it from 
being ``fixed forever by the 18th century understanding.''
  My colleagues, the Framers of the Constitution did not give justices 
the authority to create a more perfect union; in fact, they purposely 
made changing the Constitution a very difficult process, to ensure that 
these changes were thoroughly vetted and absolutely necessary. Any 
amendments require a two-thirds vote of both Houses of Congress and 
three-fourths of State legislatures to convene constitutional 
conventions to ratify them. But, as we have seen, some justices believe 
they have the power to amend the Constitution to suit every whim.
  Foreign laws and decisions simply provide a convenient justification 
for some justices to almost thumb their noses at the Constitution and 
the legislative branch.
  Foreign legal standards can help U.S. courts determine the meaning 
behind treaties, foreign law might even aid us in interpretation of our 
Constitution as the Framers were of English descent; but there needs to 
be a distinction between appropriate and inappropriate consultation, 
aside from justices' personal opinions.
  In an address to the American Enterprise Institute earlier this year, 
Justice Scalia said, ``If there was any thought absolutely foreign to 
the Founders of our Country, it was the notion that we Americans should 
be governed the way Europeans are.'' In the Federalist Papers Number 
46, to take just what one example, James Madison speaks contemptuously 
of the governments of Europe, which are afraid to trust the people with 
arms. Are we now to revise the second amendment because what these 
other countries think?
  During his confirmation, Justice Roberts pointed out, ``Looking to 
foreign law for support is like looking out

[[Page H4524]]

over a crowd and picking out your best friends.'' A judge relying on 
foreign law in their decisionmaking can hand-pick a precedent based on 
a predetermined outcome of their choice.
  So, Mr. Speaker, I believe that our courts should rely on our 
history, our laws, and most importantly our Constitution to help them 
reach a decision, especially when it comes to domestic issues. That is 
why we must focus our energies on the other body on confirming quality 
judges with a healthy respect for the Constitution like Justice Roberts 
and Justice Alito.

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