[Congressional Record (Bound Edition), Volume 151 (2005), Part 7]
[House]
[Pages 9121-9127]
[From the U.S. 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 unacknowl-
edged 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

[[Page 9122]]

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 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

[[Page 9123]]

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. 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

[[Page 9124]]

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 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

[[Page 9125]]

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 
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

[[Page 9126]]

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.''
  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

[[Page 9127]]

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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