<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:22494.wais]
HOUSE RESOLUTION ON THE APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE
INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
H. Res. 97
__________
JULY 19, 2005
__________
Serial No. 109-40
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
JULY 19, 2005
Hearing on H. Res. 97, expressing the sense of the House of
Representatives that judicial determinations regarding the meaning of
the Constitution of the United States should not be based on judgments,
laws, or pronouncements of foreign institutions unless such foreign
judgments, laws, or pronouncements inform an understanding of the
original meaning of the Constitution of the United States
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable Tom Feeney, a Representative in Congress from the
State of Florida, Subcommittee on the Constitution............. 4
WITNESSES
Mr. Viet D. Dinh, Professor, Georgetown University Law Center
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Mr. M. Edward Whelan, III, President, Ethics and Public Policy
Center
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Mr. Nicholas Q. Rosenkranz, Professor, Georgetown University Law
Center
Oral Testimony................................................. 28
Prepared Statement............................................. 30
Ms. Sarah Cleveland, Professor, University of Texas School of Law
Oral Testimony................................................. 36
Prepared Statement............................................. 38
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Tom Feeney, a Representative
in Congress from the State of Florida.......................... 57
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia.......... 58
Prepared Statement of Public Citizen's Global Trade Watch........ 59
HOUSE RESOLUTION ON THE APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE
INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES
----------
TUESDAY, JULY 19, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:05 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order.
Good afternoon. I would like to thank everyone for coming.
This is the Subcommittee on the Constitution's hearing on H.
Res. 97.
Today we are examining the appropriate role of foreign
judgments in the interpretation of the Constitution of the
United States. This hearing is important for a number of
reasons, but, most importantly, to make clear from this
Subcommittee's perspective that the Supreme Court's reliance,
or any court's dependence for that matter, on foreign judgments
in the interpretation of our Constitution has no place. I would
like to thank the distinguished gentleman from Florida, Mr.
Feeney, for his continued work on H. Res. 97.
We have a distinguished panel before us today, and I look
forward to their testimony before this panel. I know that you
all have busy schedules, and I know that Members of this
Subcommittee join me in thanking you for taking the time to
share your expertise.
This hearing is timely as our attention is turned to the
activities unfolding across the street. As the nomination
process moves forward, I am reminded of article VI of the U.S.
Constitution, which states that ``This Constitution, and the
Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding. The Senators and Representatives . . . and all
executive and judicial Officers, both of the United States and
of the several States, shall be bound by Oath or Affirmation,
to support this Constitution.''
Article VI and the oath that we all, including judicial
officers, take as representatives of our Federal system of
government, binds us to uphold and protect the Constitution of
the United States of America.
Unfortunately, over the last several years, we have
witnessed a trend, a dangerous trend, I believe, in which the
judiciary has strayed from its oath and duty to uphold the
meaning of the Constitution. By looking to and relying on the
decisions of foreign courts in the interpretation of the
Constitution of the United States, the judiciary not only is
undermining the vision of our Founding Fathers but is chipping
away at the core principles on which this country was founded,
chipping away at our Nation's sovereignty and independence.
When our country declared its independence from Britain,
the Founders were very aware and concerned that King George had
``combined to subject us to a jurisdiction foreign to our
Constitution and unacknowledged by our laws.'' and, in drafting
the Constitution, Alexander Hamilton stated in Federalist No.
78 that ``It can be of no weight to say that the courts, on the
pretense of a repugnancy, may substitute their own pleasure, or
anyone else's, to the constitutional intentions of the
legislature,'' making clear in the Constitution that there is
no place for the use of Federal opinion.
Despite our history, the vision of our Founding Fathers,
and the clear mandates set forth in the Constitution, the
judiciary has continued to rely, I think, and value foreign
opinion in the interpretation of the United States
Constitution. This past March 24, the Supreme Court in Roper v.
Simmons cited the practice of other countries in striking down
the death penalty, concluding that ``It is proper that we
acknowledge the overwhelming weight of international opinion
against the juvenile death penalty.'' in looking to the
international consensus, Justice Kennedy clearly neglected to
look to the consensus citizens of the 20 States that continued
to allow the practice until March.
This is not an isolated case. In 2003, in Lawrence v.
Texas, the Court cited a decision by the European Court of
Human Rights as a lack of world consensus on the illegality of
such conduct.
In 2002, in Adkins v. Virginia, the Court referenced the
views of the European Union's brief filed with the Court in a
footnote to its decision to find death sentences for mentally
retarded individuals unconstitutional.
Our country has evolved to where there is enough precedent
and enough corpus juris which a court can use to interpret and
determine whether the laws of Congress or of the several States
are permissible under the confines of our Constitution.
Furthermore, our Constitution is clear as to its supremacy and
to the role of the judiciary in upholding this constitutional
tenet.
Americans deserve certainty, most of all, from the
principles on which this country was founded. They deserve to
know the meaning of our Constitution as intended by our
legislatures under our body of law, not as intended by the
world. H. Res. 97 is necessary now more than ever to remind the
Court and all representatives, elected and appointed, who took
an oath to uphold their obligation, both to the Constitution,
and to the American people.
I look forward to hearing from our panel of witnesses on
this issue this afternoon and on H. Res. 97. And at this time,
I will yield to the gentleman from New York, Mr. Nadler, the
Ranking Member of this Committee for the purpose of making an
opening statement.
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, I want
to join you in welcoming our witnesses today. As we await the
President's nomination of a new justice of the Supreme Court,
it is important that this Committee consider the role of the
judiciary in our system of Government. I hope that the Senate
will, in considering the lifetime appointment of a Supreme
Court justice, exercise its constitutional duty of advice and
consent and not act merely as a rubber stamp.
Our main concern, Mr. Chairman, is that attacks on the
judiciary in this Committee have crossed the dangerous and
inappropriate line between acceptable commentary and response,
and potentially destructive attempts to destroy the separation
of powers, which has been one of the foundations of our
freedoms.
Congress may certainly change legislation if we are not
satisfied with the Court's interpretation of the law. Congress
may also choose not to exercise powers the Court has said we
have under the Constitution. In rare and extraordinary
circumstances, we can even initiate an amendment to the
Constitution. We may not always agree on policy, but these are
all powers given to Congress under the Constitution.
This Committee and this Congress, however, have begun to
stray from the appropriate to the dangerous. While I realize
that some issues before the Court arouse strong feelings,
Congress has a duty to set a reasoned example to the Nation.
Lambasting the courts as unelected judges--if that were not the
design of the Government--undercuts the protection of our
liberties.
This Subcommittee, despite its name, has never taken the
time to look into the Court's long and worrisome record of
using the 11th amendment contrary to its intent, limiting the
reach of the commerce clause in undercutting Congress' powers
to enforce the 14th amendment in ways that have undercut our
civil rights laws. The outrage has sometimes proved selective.
Threats of impeachment, attempts to eliminate Federal court
jurisdiction to rule on certain select issues, even an
amendment to the budget a few weeks ago, to the appropriations
bill to say no funds appropriated herein to the Justice
Department may be used to enforce a specifically named decision
of a Federal district court, ex parte communications with
Federal judges concerning their actions in a particular
proceeding, threats or subpoenas in cases where Members of this
Committee disagree with a certain result, and the even
inflammatory comments approving of violence against judges do a
disservice to the foundations of our constitutional system of
Government.
Today we examine the use of non-U.S. sources in judicial
decisions. I continue to believe that this is a big fuss over
nothing. No case has ever turned on a foreign source. No
foreign source has ever been treated as binding, and this
phenomenon of citing foreign sources is certainly nothing new.
What is really dangerous is the threats that accompany our
deliberations, and the suggestion that Congress may exercise
its power to tell the courts what is or is not appropriate,
what is or is not an appropriate way to consider a complex
issue. Our courts should not decide important issues with
blinders anymore than should Congress.
I would also remind my colleagues who voted for NAFTA, who
are contemplating voting for DR-CAFTA, that our sovereignty is
far more threatened by the remedies available to foreign
corporations and governments because of NAFTA, and
prospectively because of CAFTA, than because of anything that
has appeared in these court decisions, whether it is
international bodies telling us which laws we cannot--we can
and cannot have or enforce, or foreign corporations seeking
remedies against our businesses. And if our Members are really
concerned about threats to our sovereignty, they will look at
these foreign agreements which cede sovereignty to World Trade
Organization tribunals as to which of our own laws we can
enforce and which we cannot.
I welcome our witnesses, and I look forward to hearing
their testimony. I would also ask unanimous consent that
Members have 5 days to revise and expand their remarks and
include additional materials in the record.
I thank you, Mr. Chairman, and I yield back.
Mr. Chabot. Thank you. Without objection, so ordered.
The gentleman from Florida, Mr. Feeney, who is one of the
two principal sponsors of this legislation. If he would like to
make a brief opening statement, I am sure the Committee would
welcome that.
Mr. Feeney. I thank the Chairman. But before I do that, I
would like unanimous consent to place into the record a
statement by our good colleague, Congressman Bob Goodlatte, who
is cosponsor of the Feeney-Goodlatte resolution.
Mr. Chabot. Without objection so ordered.
Mr. Feeney. Thank you, Mr. Chairman, again for holding a
hearing on a very important issue.
Six Supreme Court U.S. justices have approvingly been
described by Professor--actually Yale Law Dean Harold Koh--as
transna tionalists. They have increasingly expressed
essentially disappointment in our own U.S. Constitution as
originally written by the Drafters and Framers of our
Constitution by importing foreign laws, fads, constitutions,
and political polls to somehow create or reinterpret against
their own 20- or 10-year-old precedence on the bench from the
U.S. Supreme Court to reinterpret the meaning of our very
Constitution.
With disturbing frequency they have looked at and looked
all over 191 nations recognized by the United States State
Department for some favorable or agreeable laws that they could
use to justify their result-oriented approach.
So I want to thank Mr. Goodlatte and many others on this
Committee. We hope to have a great civics debate as part of
this discussion as we tee it up in the United States Senate in
terms of what the appropriate role of the United States justice
ought to be.
If we are going to have a Republican government small arm--
meaning that people get to elect policymakers--I think every
American, from third grade to the end of their retirement
years, ought to understand what the appropriate role of the
Justice is.
That is, in my view, to interpret the original meaning of
the Constitution and to interpret the laws as intended by the
law-givers in the States and the Federal--at the Federal level.
In the Declaration of Independence, Jefferson and the
Founders explained the rationale for war against and separation
from Britain. Among other things, they alleged that the King
had combined with others to subject us to a jurisdiction
foreign to our Constitution and unacknowledged by our laws.
Yet it appears that is exactly what is happening to the
extent that we have Supreme Court Justices relying on
contemporary fads, following polls, laws, et cetera, in order
to somehow reinterpret the United States Constitution. The most
recent alarming decision was in Roper v. Simmons. Again, the
United States Supreme Court undermined its own precedent. This
is not something that they were looking as comparative analysis
or thought that it would be interesting to make note.
You know, I would say to my friend from New York that
indeed they did rely at least in part on foreign laws to change
their own precedent with respect to whether or not people under
the age of 18 can ever be subject to the death penalty in
America.
Never mind that a majority of the States that have the
death penalty, elected legislatures by the people, allow a 17-
year-old murderer under certain circumstances to be put to
death. In Florida, over 70 percent of the people have amended
our Constitution to allow for the egregious circumstances for
people under the age of 18.
So with one fell swoop, based in part on foreign law, we
have the United States Supreme Court--or a majority anyway--
throwing out constitutional referendum in Florida and throwing
out the laws of a significant portion of our States.
They did the same thing in Adkins, overturning their own
precedent--democratically elected policymakers' decisions.
They did the same thing in Lawrence v. Texas on the issue
of whether or not the State of Texas had the right to regulate
sodomy.
By the way I won't necessarily quarrel with the outcome of
any of their decisions. It's exactly the fact that they relied
on international laws, fads, institutions, constitutions, et
cetera.
It is important to read what the Feeney-Goodlatte
resolution does. I would say to Professor Cleveland, we
certainly welcome your comments. I am glad that you are here
today because this is an interesting case. I was surprised,
when I found and read your testimony, that I agree with a great
deal of what you have to say. Indeed, it's often appropriate to
cite what is going on in other countries.
In interpreting our Constitution, for example, it would be
hard to understand the administration of powers if you hadn't
referred to Montague, who Madison says is essentially the
founder of the concept of separation of powers. Our Founders
were terribly familiar with everybody from Plato, Cicero, Lock,
Mill, Blackstone, for a definition of the words ``law of
nations.'' one of the problems we have here today is people are
confusing the term ``law of nations,'' which is in article I of
the Constitution, with international law. These are very
different things.
I would refer you to Mr. Blackstone's description of what
the law of nations are. It is actually something that doesn't
change over time; God-given rights like Jefferson referred to
in our Declaration.
International law changes a great deal. It does not
prohibit, by the way, anytime there is legislative history
involved in citing foreign authorities.
If we decide to adopt the German pension system, for
example, we debate the German pension system, we want to adopt
a Social Security system designed on Bismarck's system which,
in fact, to some extent happened--it may be terribly important
for the courts to look at the history in Germany of the pension
system that Congress adopted.
The legislative history is always appropriate. Treaty,
maritime law, all mentioned in the Constitution, are always
appropriate for the courts to recognize.
What Feeney-Goodlatte prohibits is overturning
constitutional precedent, is creating or finding new
constitutional rights or privileges based on contemporary post-
constitutional law.
With that, I think that there is no more important question
to ask the nominee that we expect at any time now, and all
future nominees in terms of their jurisprudential approach. It
seems to me that it is appropriate for nominees to comment on
this. After all, we have Judge Scalia, Judge Breyer, Judge
Ginsburg, and Judge O'Connor at a minimum, not only in their
opinions, but off the bench, debating the legitimate use of
international law to determine our own constitutional rights.
I will end, Mr. Chairman, by suggesting that when courts do
what I have suggested they have done in the three cases I have
cited, they in my view violate article I, article II, article
III, article IV, article V and article VI. Perhaps we will get
into that. I can't find anything in article VII that the judges
are violating with respect to their oath when they engage in
this procedure. And I yield back to the Chairman.
Mr. Chabot. Thank you very much. We have a very
distinguished panel with us here this afternoon. We are anxious
to get to them. I would like to introduce them at this time.
Our first witness will be Mr. Viet Dinh. Mr. Dinh currently
is a professor of law at Georgetown University Law Center and
founder and principal of Bancroft Associates. His credentials
are too numerous to list, but I will note that he previously
served as U.S. Assistant Attorney General for Legal Policy from
2001 to 2003, served as Special Counsel to the U.S. Senate
Whitewater Committee, and as Special Counsel to Senator Pete
Domenici for the impeachment trial of the President. He was a
law clerk to both Judge Lawrence H. Silberman of the U.S. Court
of Appeals and to U.S. Supreme Court Justice Sandra Day
O'Connor. It is very nice to see you again, Professor.
Our second witness is Mr. Edward Whelan, and Mr. Whelan is
the President of the Ethics and Public Policy Center, where he
directs the Center's program on the Constitution, the Courts
and the Culture. Prior to joining EPPC, Mr. Whelan worked at
the Department of Justice where he served as the Principal
Deputy Assistant Attorney General for the Office of Legal
Counsel, starting the position right before September 11th. Mr.
Whelan previously served as General Counsel to the U.S. Senate
Committee on the Judiciary. He is a former law clerk to both
Judge J. Clifford Wallace on the U.S. Court of Appeals for the
Ninth Circuit and for U.S. Supreme Court Justice Antonin
Scalia. We welcome you here this afternoon.
Our third witness is Nick Rosenkranz, who also worked in
the Department of Justice's Office of Legal Counsel, serving as
an Attorney-Advisor. Prior to joining the Department of
Justice, Mr. Rosenkranz served as a law clerk for both Judge
Frank Easterbrook on the U.S. Court of Appeals for the Seventh
Circuit and for U.S. Supreme Court Justice Anthony M. Kennedy.
We welcome you here this afternoon, Mr. Rosenkranz.
Our fourth and final witness is Sarah Cleveland, Marrs
McLean Professor in Law at the University of Texas School of
Law. Ms. Cleveland is a former Rhodes Scholar and a law clerk
to U.S. Supreme Court Justice Harry Blackmun. Her interests
include international human and international labor rights,
foreign affairs and the Constitution, and Federal civil
procedure. She is the author of many publications, including
``Powers Inherent in Sovereignty: Indians, Aliens, Territories,
and the Nineteenth-Century Origins of Plenary Power in Foreign
Affairs,'' Texas Law Review, 2002. We thank you very much for
being here this afternoon, Ms. Cleveland.
For those who have not testified before this Committee
before, let me explain very briefly our lighting system. We
have what is called the 5-minute rule. You basically have 5
minutes to testify. Everyone, including Members up here, are
limited to 5 minutes.
We have the system there, the green light will be on for 4
minutes, the yellow light, we hope--it wasn't working in the
last hearing we had a few hours ago, we hope it is working now.
The yellow light is supposed come on for 1 minute. And then the
red light, we would ask you to wrap up as close as possible
when that light come on. We will give you a little leeway but
we would ask you to keep as close to that as possible.
It is the practice of this Committee to swear in all the
witnesses appearing before it. So if you would all please rise
at this time and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. Thank you very much. All witnesses have
answered in the affirmative.
We will begin with you this afternoon, Professor Dinh. You
have 5 minutes.
TESTIMONY OF VIET D. DINH, PROFESSOR,
GEORGETOWN UNIVERSITY LAW CENTER
Mr. Dinh. Thank you very much, Mr. Chairman, and Members of
the Committee. Thank you for the opportunity to be here again
to talk about this important topic raised by House Resolution
97: When, if ever, is it appropriate for American courts to
consult foreign courts of law in an interpretation of purely
American law, particularly the United States Constitution?
Let me start, as Mr. Feeney did, by listing the various
areas in which, in my opinion, consideration of foreign sources
of law would not only be appropriate but I think essential in
the decisionmaking process of U.S. courts.
First, obviously, where the case turns on the meaning of a
foreign law. For example, in the case 2 years ago of J.P.
Morgan v. Traffic Stream. Second where the case turns on the
actions and wishes of foreign tribunals. For example, again, on
the same term, the case of Hoffman-LaRoche v. Empagran. Third,
where the case turns on the existence of meaning of the law of
nations. Again, from the same term, Sosa v. Alvarez-Machain.
And also when a court is interpreting a treaty, it is natural
to look to the interpretation of that treaty by the courts of
nations, who are also signatories to that treaty. Olympic
Airways v. Husain, also in the same term, to which I return.
Where foreign sources of law is not relevant and
appropriate, however, is in the interpretation of the United
States Constitution. There are several reasons for this. The
Chairman and Mr. Feeney have gone through them in length. I
just want to summarize here my testimony.
First is the obvious fact that foreign courts are not
interpreting the United States Constitution. How foreign courts
interpret, for example, the European Convention on Human Rights
tell us very little what a different document, that is our U.S.
Constitution, means. It may well be, as many Justices have
observed, that foreign judges often look to the United States
Supreme Court precedent in interpreting constitutions and
treaties, modeled after the United States Constitution. This is
perfectly legitimate and normal; just as U.S. judges do and
should look to the foreign antecedents to the U.S. Constitution
to discern its meaning. But there is very little reason why the
meaning of the U.S. Constitution should be informed by the
views, the post-constitutional views, of contemporary foreign
judges interpreting their own laws and constitution.
Second is democratic legitimacy. It is okay to consider
foreign interpretations of a common treaty, say the Warsaw
Convention, not only because the courts are interpreting the
same document. Rather, it is also okay because the democratic
process has said that it is, implicitly or explicitly.
Congress, in ratifying a treaty, has the opportunity to decide
whether or not to involve the Federal judiciary at all by
making a treaty self-executing or not. Even where Congress has
given a role to judges in interpreting and enforcing a treaty
by making it self-executing, Congress can specify the terms of
such judicial involvement through reservation and other
statutory language. In fact, the preamble to some treaties,
again such as the Warsaw Convention, expressly recognize that
intent and purpose to provide uniform legal principles or a
uniform manner of interpretation.
By contrast, in cases of purely American law, there are no
corresponding democratic authorization of nor legislative
checks on the reliance on foreign judgments. There is simply no
way that I or any other citizen, or you as elected
representatives of us, can affect how a foreign court would
view a U.S. Constitutional issue.
Thirdly and finally, there is simply a matter of consistent
methodology. The reason why I bring up the Warsaw Convention
and the case of Olympic Airways v. Husain so often in this
brief statement is the fact that nobody doubts that
consideration of foreign judgments in that context is
legitimate. Yet a majority of the Supreme Court in deciding the
matter neglected to even cite the fact that two other signatory
nations have interpreted the exact same convention, deciding
the exact same issue in a diametrically opposed way from which
the Supreme Court had come to its conclusion.
In dissent, Justice Scalia threw up his hands and said,
here I have been saying for the last 3 or 4 years we shouldn't
consider foreign laws in illegitimate instances. In the one
instance where it is legitimate, you can probably ignore the
relevant judgment of foreign courts.
The reason for this, I think one of the explanations for
this, is that we as American lawyers, and especially as
American judges, are just not very good at doing foreign laws.
We are not steeped in their tradition, we do not know the
interpretation. We do not know the entire body of law of a
particular nation or of a particular organization or of a
particular convention. So what is left is that we would cherry-
pick those sources of law which would tend to support our point
of view, whether it be in a brief or in a particular opinion.
In the short run, that may ostensibly add to some ethereal
legitimacy to or persuasiveness to that particular opinion or
brief, but I would contend that in the long run and not very
long either, but just a little bit of reflection would indicate
the underlying illegitimacy and lack of reliability of such
reliance.
I will close there and take any further questions. Thank
you very much.
Mr. Chabot. We appreciate it, Professor.
[The prepared statement of Mr. Dinh follows:]
Prepared Statement of Viet D. Dinh
Mr. Chairman and Members of the Subcommittee,
Thank you very much for this opportunity to comment on House
Resolution 97 and the very important constitutional issues raised by
the consideration and application of foreign judgments to the
interpretation of United States law, and particularly upon
interpretation of the United States Constitution.
The issue raised by today's hearing is indeed an important one:
when, if ever, U.S. courts should consider or rely upon the decisions
of foreign courts in the interpretation of American law. The issue is
particularly important at this time, as in recent years it appears our
courts are more often referring to foreign laws and foreign court
decisions to justify the conclusion reached in a particular case.
American courts often refer to foreign law even in cases involving
interpretation of a purely domestic law. Thus, unfortunately, it
appears our courts, most noticeably the Supreme Court, are looking to
foreign decisions and legal principles in the wrong instances.
The consideration of foreign court decisions is not always improper
or inappropriate. Where the law to be construed is a treaty, the
interpretations given that treaty by other nations that are parties to
the agreement are certainly relevant; our courts should consider these
precedents in formulating their own interpretations of the same legal
provision. Where, however, the law being interpreted is solely
domestic, American law, and particularly where the interpretation is of
a constitutional provision, decisions by foreign tribunals on a
seemingly similar issue have no relevance. The foreign forum was not
tasked with interpreting and applying U.S. law, but rather has the
responsibility for applying its own laws.
Despite what I conclude is a clear and necessary distinction
between when the consideration of foreign judgments is appropriate,
many Justices of the Supreme Court have made it clear that the trend of
considering foreign judgments is not coming to an end, but rather is
expanding. It is for that reason that I believe this is such an
important topic.
When the court is called upon to interpret a treaty or agreement
among nations, the court must ``accord the judgments of our sister
signatories `considerable weight.' '' Olympic Airways v. Husain, 540
U.S. 644, 658 (2004) (Scalia, J., dissenting) (quoting Air France v.
Saks, 470 U.S. 392, 404 (1985)). For example, in applying provisions of
the Warsaw Convention, the Supreme Court has, in many instances,
carefully considered the case law of parties to that treaty. See, e.g.,
El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173-74
(1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550-51 (1991);
Air France, 470 U.S. 392. But see Olympic Airways, 540 U.S. 644.
Unfortunately, in this area, where consideration of the judgments
of foreign courts has significance, our courts have not consistently
looked to such judgments. In at least one instance, foreign decisions
were not considered at all by the majority. See Olympic Airways, 540
U.S. 644. This failure to consider the decisions of the courts of other
countries who are parties to the relevant agreement represents a
failure to follow a well-established legal principle--to ensure, to the
extent possible, the consistent interpretation and application of a
single law.
Where two nations have jointly adopted a single law, it is
consistent with accepted legal principles that an attempt should be
made to provide for consistent interpretations of that law. ``Foreign
constructions are evidence of the original shared understanding of the
contracting parties. Moreover, it is reasonable to impute to the
parties an intent that their respective courts strive to interpret the
treaty consistently.'' Id., at 660 (Scalia, J., dissenting).
The legitimacy of considering foreign interpretations of a common
treaty derives not simply from the technicality that the courts are
interpreting the same document. Rather, it stems also from the
interaction with the democratic process. First, Congress in exercising
its constitutional authority to ratify a treaty has the opportunity to
decide whether or not to involve the judiciary at all by making the
treaty self-executing. Even where Congress has afforded judges a role
in enforcing and interpreting a treaty, it can specify the terms of
such judicial involvement through reservations and other statutory
tools. In fact, the preamble to some treaties, such as the Warsaw
Convention, expressly recognize that intent and purpose--to provide
uniform legal principles or a uniform manner of regulation. Convention
for the Unification of Certain Rules Relating to International
Transportation by Air preamble, Oct. 29, 1934, 49 Stat. 3000, 3014,
T.S. No. 876 (reprinted at 49 U.S.C. Sec. 40105).
By contrast, in cases of purely American law, there are no
corresponding democratic authorization of nor legislative checks on the
reliance on foreign judgments. There is simply no way that I or any
other citizen can affect how a foreign court would view a particular
issue.
It is our own courts and not foreign courts that are tasked with
interpreting our laws. The American judiciary is not independent of the
Constitution and the laws of this country. Indeed, it is from the
Constitution itself that any authority to interpret our laws vests in
the judiciary. The Constitution does not separate and isolate us from
other countries. It contains the treaty power, recognizing the need to
cooperate and build relationships with other countries. It also does
not limit or prevent our own lawmakers from looking to foreign laws and
foreign court judgments in drafting, debating and developing our own
laws.
Though most recent consideration of foreign legal trends has
occurred in connection with social issues, courts could conceivably
extend this practice to use foreign authorities when adjudicating other
fundamental issues, including our approach to our own national defense.
For example, we cannot tolerate a court's invalidating initiatives in
the War on Terror on the grounds that some other nations view those
actions as incorrect or unwise. To give weight to foreign decisions on
matters of American concern opens the door for consideration of foreign
decisions on all matters, even those that should ultimately be matters
for us alone.
Constitutional rights exist because of the Constitution itself.
They do not derive from any source external to that document. It is
through this contract between our government and our citizens that the
government has the authority to enact laws and the courts have the
authority to interpret them. The Constitution tasks our country's
courts with the interpretation of the document. It is not within the
purview of any foreign tribunal to interpret the meaning of any
provision of our Constitution. Foreign views of how our Constitution
should be interpreted should provide no instruction to our own courts;
nor should our courts eschew their own responsibility of interpretation
by relying instead on the views of foreign jurists. In the same way
that the parties to a treaty should respect each other's
interpretations of those mutually binding agreements, so too should
American courts look to the understanding (as set forth in its text)
the document was given by the actual parties to it--i.e., the American
people at the time of its drafting and ratification.
The recent reliance on international sources raises issues of
sovereignty and separation of powers, and ultimately the dilution of
the power of the people in this country. As Justice Scalia explains,
We must never forget that it is a Constitution for the United
States of America that we are expounding. The practices of
other nations, particularly other democracies, can be relevant
to determining whether a practice uniform among our people is
not merely a historical accident, but rather so implicit in the
concept of ordered liberty that it occupies a place not merely
in our mores but, text permitting, in our Constitution as well.
But where there is not first a settled consensus among our own
people, the views of other nations, however enlightened the
Justices of this Court may think them to be, cannot be imposed
upon Americans through the Constitution.
Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J.,
dissenting) (internal quotation marks and citations omitted).
This conclusion holds across the spectrum of interpretive theories.
Indeed, it is perhaps most necessary for expansive methodologies, such
as ones depending on ``the evolving standards of decency that mark the
progress of a maturing society.'' Trop v. Dulles, 356 U.S. 86, 99-101
(1958). Because such expansive strategies are less anchored in the
Constitution's text, structure or history, a jurisprudential limitation
on the geographic or jurisdiction sources of law is necessary to ensure
that constitutional law remains predicated on neutral principles and
not on the whims of individual judges or court compositions.
To be sure, legislative direction to the courts on how to interpret
the Constitution may raise significant separation of powers concerns.
This Resolution, however, does not provide such direction, or otherwise
require the courts to adhere to any of its statements. Rather, the
Resolution merely provides the sense of this body that interpretations
of our Constitution should not be governed by foreign judgments or
views.
It is wholly appropriate for the House of Representatives to
provide its opinions on the interpretation of the Constitution, a
document that its members, just as the members of the judiciary, have
sworn to uphold and defend. It is certainly no more inappropriate than
the all-too-often practice of federal judges, at all levels, to suggest
legislative changes to Congress or even to make policy pronouncements
on pending legislative matters.
______
In the final analysis, I conclude that there is a place for the
consideration of foreign judgments, and that place is in the
interpretation of treaties with those foreign nations. Where
consideration of foreign judgments is inappropriate is in the arena of
purely domestic laws, for only when a formal agreement has been reached
via a ratified treaty to conduct ourselves as they do in other
countries is such consideration appropriate in our democratic system.
Thus, I support the declaration set forth in House Resolution 97 that
``judicial interpretations regarding the meaning of the Constitution of
the United States should not be based in whole or in part on judgments,
laws, or pronouncements of foreign institutions unless such foreign
judgments, laws, or pronouncements inform an understanding of the
original meaning of the Constitution of the United States.''
Mr. Chabot. Mr. Whelan, you are recognized for 5 minutes.
TESTIMONY OF M. EDWARD WHELAN, III, PRESIDENT,
ETHICS AND PUBLIC POLICY CENTER
Mr. Whelan. Good afternoon, Chairman Chabot and other
Members of the Committee. Thank you for the opportunity to
testify here today.
Mr. Chabot. I am not sure the mike is on. If it is, you
need to pull it a little closer.
Mr. Whelan. Should be on now.
Mr. Chabot. Thank you.
Mr. Whelan. Good afternoon. Thank you for inviting me to
testify here today.
Two recent developments confirm that the threat posed by
the Court's misuse of foreign law is real and growing.
First is the Supreme Court's ruling in March in Roper v.
Simmons. There, a five-Justice majority relied on international
opinion as it held the execution of offenders who were 17 at
the time of their offense violates the eighth amendment. And
the sixth Justice, although in dissent, approved of the
majority's resort to foreign law. The facts of Roper warrant
special attention as they starkly illustrate how the same
Justices who bow to the views of foreigners, are disdainfully
dismissive of the rights of American citizens to engage in
self-governance in this country.
When he was 17, Christopher Simmons planned a brutal
murder. He assured his friends they could get away with it
because they were minors. In the middle of the night, Simmons
and a friend broke into a woman's home, awakened her, covered
her eyes and mouth with duct tape, bound her hands, put her in
her minivan, drove to a State park, walked her to a railroad
trestle spanning a river, tied her hands and feet together with
electrical wire, wrapped her whole face in duct tape, and threw
her from the bridge. Exactly as Simmons planned, his victim
drowned, an unspeakably cruel death, in the waters below.
Simmons confessed to the murder.
At the death penalty phase of his trial, the judge
instructed the jurors that they could consider Simmons' age as
a mitigating factor and the defense relied heavily on that
factor. The jury recommended and the trial judge imposed the
death penalty.
Overturning its own precedent, the five-Justice majority
ruled that the death penalty for juvenile offenders violates
the eighth amendment. In support of its ruling, it found what
it called ``respected and significant confirmation'' in the
``overwhelming weight of international opinion against a
juvenile death penalty.'' According to the majority, the fact
that the United States, alone with Somalia in the world, has
not ratified article 37 of the U.N. Convention, which contains
an express prohibition on capital punishment for crimes
committed by juveniles, supports its conclusion that the
juvenile death penalty is unconstitutional.
But as Justice Scalia observed in dissent, ``unless the
court has added to its arsenal the power to join and ratify
treaties on behalf of the United States,'' the United States'
nonratification of article 37 undercuts rather than supports
the majority's position. Scalia also points out that the
Justices in the majority would never aim to conform American
law to the rest of the world on matters like the exclusionary
rule, church-state relations, and abortion.
Second, in recent months, at least two Justices in the
Roper majority have made remarkably feeble efforts to justify
free-wheeling resort to foreign law on a broad range of
constitutional questions. Addressing a group of international
lawyers, Justice Ginsburg resorts to kindergarten talk. ``We
can learn from others,'' she says. ``We can join hands with
others.'' We should ``share our experience.''
But she never explains how a foreign court's decision on
how a foreign law measures up to a foreign charter can have
analytical value in construing our Constitution.
Justice Breyer argues that citing foreign judges might
``give them a leg up'' in dealing with legislators in their own
countries. In short, he seems to think it part of his job to
attempt to influence internal disputes in foreign countries.
Beyond that, Breyer utters irrelevant platitudes like
``Americans are human and so is everybody else,'' and ``our
people in this country are not that much different than people
other places.''
There is no legitimate basis for the Supreme Court to rely
on contemporary foreign laws or decisions in determining the
meaning of provisions in our Constitution. The six Justices who
resort to these materials do so because they embrace an
essentially lawless, utterly unconstrained view of their own
role as Justices.
It is no coincidence that it is these same six Justices who
have endorsed the vacuous New Age declaration that ``At the
heart of liberty is the right to define one's own concept of
existence of meaning, of the universe, and of the mystery of
human life.'' For that declaration is nothing more than
camouflage for the underlying claim by those Justices to have
the limitless power to define for all Americans which
particular interests those Justices think should be beyond the
bounds of American citizens to address through legislation.
The Framers established a constitutional structure into
which American citizens, within the broad bounds delineated by
the Constitution, have the power and responsibility to decide
how their own States and communities and the Nation should be
governed. In their ongoing project to demolish that structure,
these six Justices see foreign law as another powerful tool
that they can wield whenever it suits them.
Thus the broader long-term resolution to the problem that
House Resolution 97 usefully addresses is the confirmation to
the Supreme Court of originalist Justices like Scalia and
Thomas who understand that the Constitution constrains them to
construe its provisions in accordance with the meaning those
provisions bore at the time they were promulgated--Justices, in
short, who understand that the Constitution does not give them
free rein to impose their own policy preferences on the grand
questions of the day.
Thank you.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Whelan follows:]
Prepared Statement of M. Edward Whelan III
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Mr. Chabot. Mr. Rosenkranz, or Professor Rosenkranz, you
are recognized for 5 minutes.
TESTIMONY OF NICHOLAS Q. ROSENKRANZ, PROFESSOR, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Rosenkranz. I thank you, and I thank the Committee for
the opportunity to express my views on this important topic.
I largely agree with what has been said so far, so I will
limit myself to three brief comments:
First, I will discuss the separation of powers implications
of directing a resolution regarding constitutional
interpretation to the judiciary.
Second, I hope to show that the reliance on current foreign
law undermines the bedrock principle of democratic self-
governance.
Third, I will explore whether the Congress should also take
up the same issue in the context of statutory interpretation.
The first point I wish to make is that House Resolution 97
is consistent with separation of powers. At a prior hearing
before this Committee, my colleague, Professor Vicki Jackson,
suggested that legislative directions to the courts on how to
interpret the Constitution raise serious separation of powers
questions. She may well be right.
But the key point today is that House Resolution 97 does
not give directions to the courts. It does not purport to bind
them. It simply expresses the sense of the House on this
question. Because the resolution does not bind the judiciary,
it cannot be objected to on separation of powers grounds.
Indeed it should be applauded on these grounds. It is entirely
proper for Congress to inform the courts of its views on
constitutional interpretation. It is particularly appropriate
when the method under discussion has such dramatic
implications.
Which brings me to my second point. The current
predilection for using contemporary foreign law to interpret
the U.S. Constitution necessarily entails a rejection of the
quest for original meaning. Simply put, those who would cite
contemporary foreign law necessarily embrace the notion of an
evolving Constitution.
The notion of the Court updating the Constitution to
reflect its own evolving view of good government is troubling
enough, but the notion that this evolution may be brought about
by changes in foreign law raises fundamental issues of
democratic self-governance. This, I think, puts the finest
point on what is really at stake here. When the Supreme Court
declares that the Constitution evolves, and declares further
that foreign law affects its evolution, it is declaring nothing
less than the power of foreign governments to change the
meaning of the United States Constitution.
Moreover, it might take only a single foreign country to
tip the scales and create a consensus in the eyes of the
courts. And there is no reason why a foreign country could not
do this self-consciously. Indeed, France has expressly
announced that one of its priorities is the abolition of
capital punishment in the United States. Yet surely it would
come as a shock to the American people to imagine the French
Parliament deciding whether to abolish the death penalty not
just in France, but also in America.
After all, foreign control over American law was a primary
grievance of the Declaration of Independence. King George III
had ``subject[ed] us to a jurisdiction foreign to our
constitution.'' This is exactly what is at stake here: foreign
government control over the meaning of our Constitution. Any
such control is inconsistent with basic principles of
democratic self-governance, reflected both in the Declaration
of Independence and in the Constitution itself.
The third point I wish to make is that while the resolution
is limited to interpretation of the Constitution, courts often
rely on foreign and international law in the interpretation of
other federal law as well. Now, Professor Dinh has explained
how foreign judgments may be relevant to the interpretation of
treaties. A different question is whether international law may
be relevant to the interpretation of Federal statutes.
Under current doctrine, courts regularly bend over
backwards to construe Federal statutes to be consistent with
international law, even when the text of the statute would
perhaps be a different construction. Now, particularly in light
of the dramatic expansion and metamorphosis of customary
international law since World War II, Congress may want to
consider whether it approves of this doctrine.
If it decides that the answer is no--that it would prefer
for its statutes to be read according to their plain terms
without reference to international law--then it might consider
a subsequent resolution parallel to the present one, expressly
rejecting the general use of international law in interpreting
Federal statutes.
Indeed, while congressional mandates to foreign--Federal
courts regarding constitutional interpretation may raise
separation of powers concerns, congressional mandates regarding
statutory interpretation generally do not. Thus Congress could,
in fact, go further and enact a mandatory statute along the
following lines: ``Future acts of Congress shall not be
interpreted by reference to foreign or international law unless
they expressly reference and incorporate such bodies of law.''
I believe that such a statute is worthy of serious
consideration.
In conclusion, House Resolution 97's nonbinding message to
the courts does not violate separation of powers but, rather,
reflects a healthy step toward interbranch constitutional
dialogue. Moreover, the resolution rightly rejects the
troubling notion that our Constitution can be made to evolve at
the behest of foreign institutions. My only suggestion is that
Congress next study this same issue as it applies in the
context of statutory interpretation.
I applaud House Resolution 97, and I thank the Committee
for the opportunity to endorse it.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Rosenkranz follows:]
Prepared Statement of Nicholas Quinn Rosenkranz
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Mr. Chabot. Our final witness this afternoon is Professor
Cleveland. You are recognized for 5 minutes, Professor.
TESTIMONY OF SARAH CLEVELAND, PROFESSOR,
UNIVERSITY OF TEXAS SCHOOL OF LAW
Ms. Cleveland. Thank you. I also thank the Committee for
inviting me to address this important subject. Before I start,
I should note I am speaking in my personal capacity. None of
the views I state reflect the views of the University of Texas.
I oppose proposed Resolution 97, because the resolution is
contrary to over 200 years of American constitutional
tradition. Since the founding of this country, the Federal
courts routinely have considered foreign sources of laws in
resolving constitutional questions, and the recent cases such
as Lawrence and Roper are fully consistent with this heritage.
Indeed, it is the critics of the practice who are the
innovators now.
Foreign sources have been employed by the most respected
jurists this country has known, including Chief Justice John
Marshall, Chief Justice Taney, Justices Story, Field, John
Marshall Harlan, Cardozo, Sutherland, Jackson, Frankfurter, and
Chief Justice Earl Warren.
At least seven members of the current Supreme Court have
embraced the use of foreign authorities, including Chief
Justice Rehnquist, who has supported having U.S. courts look to
the decisions of other constitutional courts to aid in their
own deliberative process.
The Court has employed constitutional--international legal
materials in constitutional analysis for a variety of purposes.
For example, courts often explain a domestic constitutional
rule by distinguishing it from another country's practices.
Judges, including Justice Scalia, have used foreign examples to
test the likely result of a particular constitutional
hypothesis. Yet even these modest uses of foreign authority
could be considered contrary to House Resolution 97.
The Supreme Court has also recognized that our
constitutional design invites consideration of foreign
authorities in a variety of ways. I will offer six examples.
First, the one that has been mentioned already, Congress'
power to define and punish offenses against the law of nations,
requires the Court to consider international rules in
construing the scope of Congress' authority.
Second, the Court has looked to international law to
interpret constitutional terms that refer to concepts of
international law such as ``war'' or ``treaties.''
Constitutional war powers decisions in particular have drawn
heavily from modern international law norms, not simply the
international rules that existed at the time of the framing.
Third, in perhaps the most interesting set of cases, the
courts have looked to international rules governing relations
between sovereign nations and applied those rules to determine
the scope of State authority within our Federal system. They
have done this in the context of 14th amendment Due Process and
the Full Faith and Credit Clause.
Fourth, in numerous cases involving Congress' power to
regulate immigration, govern Indian tribes, govern territories,
exercise the power of eminent domain, and to borrow money, the
Court has looked to the powers of other sovereign governments
to conclude that Congress should, in fact, have this power.
Fifth, the Court has also recognized that international law
may create a compelling governmental interest in constitutional
cases. The case of Booz v. Berry involved the question of
whether or not a D.C. ordinance regulating protests outside of
foreign embassies violated the first amendment. The Supreme
Court recognized that U.S. international obligations could
create a vital governmental interest, warranting regulation
under some circumstances. The case indicates that in some
context it would be difficult to interpret even the first
amendment without considering modern international law.
Finally, to the extent that the Constitution's individual
rights provisions incorporate assumptions about the basic
rights of all human beings, the Court has recognized for over
100 years that foreign practices regarding shared common values
are an appropriate sounding board for the scope and meaning of
constitutional norms. This approach recognizes, as did the
Declaration of Independence, that our constitutional heritage
incorporates certain rights that are shared and
``inalienable,'' not simply rights unique to the American
tradition.
Moreover, the use of foreign sources of law is not a
liberal versus conservative issue. The current Republican
administration has relied heavily on modern international law
rules in interpreting the President's powers to fight the war
on terror, including the power to convene military tribunals
and the power to detain enemy combatants.
My primary point in offering these examples is to
underscore the extent to which reliance on international and
foreign sources is fully part of the American constitutional
heritage. An effort to eliminate reliance on foreign
authorities in constitutional analysis therefore would pull the
rug out from beneath many of our constitutional doctrines,
including many of the established powers of this Congress.
Judicial consideration of foreign authority does not mean,
however, that we are delegating control over our values to
foreign governments or violating our own democratic traditions.
It is our domestic Constitution, as interpreted by our own duly
appointed judges, that determines the relevance of foreign
authorities to our constitutional system in every case.
Thank you.
Mr. Chabot. Thank you very much, Professor.
[The prepared statement of Ms. Cleveland follows:]
Prepared Statement of Sarah H. Cleveland
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Mr. Chabot. Now the Members of the panel up here will have
5 minutes each to ask questions. I will begin with myself.
Last year it was suggested by some that this topic was
really much ado about nothing. Since then, we have witnessed
the courts becoming more public and unapologetic about the need
to rely on the international community to give them a better
understanding of our own Constitution or to help them in
deciding cases in this country.
How real is the threat that reliance on foreign opinions,
especially those that are consistent with the judges' own moral
or social policy judgment, will become standard practice? What
are the implications of such selective interpretations, such as
that used in Roper, and, prior to that in Lawrence, if Congress
does nothing?
I would invite any of the members of the panel to respond
if they would like to do so, in any order that you would like
to, if anybody wants to jump in at the bit.
Mr. Whelan.
Mr. Whelan. I think it's an excellent question. I think
that reliance on foreign law, as I described, is another engine
of lawless judicial activism. No Justice has been able to
explain when it would be proper to do so, when it wouldn't, in
terms of construing the meaning of the Constitution. I think
most of the examples we have heard--I agree with the point Mr.
Feeney made. Most of the examples that Professor Cleveland
raised are examples to which we would have no objections. They
are not examples that come at the core of construing the
meaning of the Constitution. But more than that, even if one
can find sporadic examples in the past where this may have been
done, what we are facing right now is a concerted effort
internationally to try to impose international norms and laws
on the American people to detract from their sovereignty, their
ability to govern themselves.
This is a real threat that is multifaceted. The Justices
will be feeding that threat if they continue to invoke foreign
law in the unprincipled manner in which they have been doing.
Mr. Chabot. Thank you. Any other witnesses like to answer
that? I have got more questions if not. But, Professor
Cleveland.
Ms. Cleveland. Well, I would simply observe that my
comments go to the fact that this has been standard practice
for two centuries in certain constitutional contexts, and that
indeed the process is a very modest one. That in the Lawrence
case, all the Supreme Court did was note that contrary to Chief
Justice Berger's opinion in Bowers v. Hardwick, the European
Court of Human Rights had prohibited homosexual sodomy 5 years
before the Bowers v. Hardwick decision. He [Justice Kennedy]
was simply correcting an error that had been made by the prior
court.
Likewise in Roper, the Court found a national consensus
prohibiting the execution of juveniles and concluded that
because of--for developmental reasons, juveniles were
inappropriate for the death penalty--before they ever
considered international practice--and then they only did so as
one element in a very complex eighth amendment analysis.
Mr. Chabot. Thank you. Professor Whelan.
Mr. Whelan. There is a game going on here where those who
invoke foreign law always pretend that it doesn't matter. Let's
take the words of the Supreme Court seriously in the Roper
case. The Court said that foreign law, international opinion,
was providing confirmation for its holding. Now, you can say,
``Oh well, perhaps it appears it would have reached the same
conclusion no matter what.'' Perhaps it might have.
You know what these Justices are telling us is, ``Don't
worry, it's not controlling.'' That gives no comfort at all.
When they say it is not controlling, they are not denying the
fact that it is a factor that will be given weight, and that
weight could prove in any particular case to be dispositive--
but we will never know when. More than that, the fact that it
is not controlling is simply an illustration of the fact that
this is lawless judicial activism. They come up with no
principle--they will not be bound by it.
I am not worried about any Justices saying, ``I am going to
be bound by foreign law in these areas.'' They are not going to
commit themselves to that because they want to select foreign
decisions in a very opportunistic manner in order to support
whatever decision they want to reach. That is why----
Mr. Chabot. Thank you. My time is just about up here. What
I am going to do is recognize Mr. Nadler here for his 5
minutes. We have some votes on the floor, but I think we can
fit in one set of 5 minutes here before we vote, so Mr. Nadler
is recognized for 5 minutes.
Mr. Nadler. Thank you. Part of this debate concerns the
question of original intent. With respect to the Roper
decision, which was the death penalty for juveniles decision,
some have argued that the majority should not have considered
evolving standards of decency; that they should only look to
the original intent of the Framers at the time of the adoption
of the Constitution.
The resolution--some of the testimony today seems to take
that position as does Justice Scalia. As Justice O'Connor
pointed out in her dissent, that would mean interpreting the
Constitution to permit the execution of 7-year-olds, which was
apparently the understanding 20 years ago. Should the Court
hold as permitted any punishment meted out at the time of their
eradication of the eighth amendment? Is that where we are at,
Professor Dinh?
Mr. Dinh. What a wonderful question not only in this
context but in the context of the Constitution interpretation
in general. As you know the eighth amendment prohibition is
against cruel and unusual punishment. So, just like the concept
of reasonableness, I think, the Founders had put into
constitutional language some temporal give to allow judges----
Mr. Nadler. By the use of the world ``unusual'' as opposed
to simply ``cruel.''
Mr. Dinh. Exactly.
Mr. Nadler. Because what is cruel now is cruel 200 years
from now. But what is unusual--but what is not usual now may be
unusual 200 years from now?
Mr. Dinh. I think that by and large, that is correct. Where
I think where we would part company is where the Supreme Court
has held that this language depends upon, quote, ``the evolving
standards of decency'' that mark the progress of a maturing
society in 1958. Whether or not that is a correct standard,
that is the applicable standard that the Court was applying in
Roper v. Simmons.
My testimony here, I want to stress, does not depend upon
the adoption of any particular interpretive methods. Indeed,
the need to eschew foreign law holds across the spectrum of
interpretive theories.
Mr. Nadler. I hear that. But let me go further, because I
only have a few minutes. Taking your point, taking your point
that the cruel and unusual could evolve over time, because
there is a give in that phrase, in Bowers--I am sorry, in
Lawrence--as Professor Cleveland pointed out--the opinions
citing British and--cited British and European authorities
basically to rebut the assumption in Bowers v. Hardwick that
homosexual sodomy was universally condemned by Western
civilization, to say, no, maybe it was once, but it isn't now.
Is that a misuse of the power given what you have just said?
Mr. Dinh. I think it is, because it is--it is an
abandonment of any anchoring of an expansive interpretive
theory, especially if your interpretive theory is not anchored
on text, history, and structure of the Constitution. You have
to find your legitimacy somewhere, but taken out of your own
jurisdiction----
Mr. Nadler. Professor Cleveland, could you answer my
question?
Mr. Dinh. --in terms of the legitimacy of the Court.
Ms. Cleveland. Well, the question is what does fundamental
liberty protect? In the Bowers decision, the Justices, or at
least Chief Justice Burger, had looked out at what he thought
was Western civilization and said, uniformly, Western
civilization prohibits this, when in fact homosexual sodomy
could not be criminalized within the 50 states of the Council
of Europe. That was the point that Justice Kennedy was making.
I think it's a very important one.
Mr. Nadler. So in other words, Justice Burger used--cited
the practice internationally to justify the Bowers decision by
saying this is condemned everywhere; and in the Lawrence
decision, they cited international decisions to say that is
simply, factually, incorrect as to what the foreigners do,
because it was cited originally by Berger.
Ms. Cleveland. Precisely.
Mr. Nadler. Is there nothing wrong with that in either way?
Assuming that Berger had not been wrong factually, was it wrong
for him to cite the foreign consideration; was it wrong for the
Court 20 years later to cite it also?
Ms. Cleveland. I don't believe so. If Burger had been
correct, then one consideration in deciding what fundamental
liberties are protected under the Due Process clause would be
what our Western civilization historically has allowed or
prohibited.
Mr. Nadler. Thank you.
Let me ask Mr. Whelan and Professor Rosenkranz, do you
think that Chief Justice Burger was wrong in Bowers to cite the
universal condemnations, as he put it, of homosexuality and to
cite foreign courts and foreign practice?
Mr. Whelan. Sir, I believe you are dealing with an opinion
of Justice White's. Perhaps I am mistaken, but Justice White
wrote the lead opinion in Bowers. I am sorry, Lawrence--Bowers,
excuse me.
Mr. Nadler. Bowers, yes.
Mr. Whelan. I am confused now. I haven't read that opinion
recently. I don't know whether he was responding to one of many
arguments that was made. I would, though, if you would permit
me to respond to your question about the common--the
understanding of the eighth amendment at the time of the
founding. With all due respect, I believe your question betrays
a fundamental distrust of the American people.
The fact that the American people might have a power to
enact unjust laws no more means that power shouldn't exist than
the fact that they might have power to say that if you cross
Constitution Avenue you should be wearing yellow pajamas and
hopping on one foot, There is no reason to think that----
Mr. Nadler. Wait a minute. What has that got to do with
what I have said? I am completely lost.
Mr. Chabot. The gentleman's time has expired.
Mr. Nadler. Could I ask unanimous consent for 1 additional
minute?
Mr. Chabot. How about 30 seconds, because we need to be on
the floor in about 5 minutes.
Mr. Nadler. Let me just say I believe the Congress has the
power to enact anything delegated to it, including the
Necessary and Proper clause interpreted in McCall v. Maryland
and its progeny, up to where it's limited by the Bill of
Rights.
Let me just take 30 seconds, Mr. Chairman, to note the
presence in this hearing room of the distinguished judge of the
highest State court of New York, the Court of Appeals, Robert
Smith.
Mr. Chabot. Excellent. We appreciate your appearance here
today.
I might note that there is probably only about 5 minutes
left on the vote on the floor. We have five votes. I would
encourage the Members to come back immediately after the fifth
vote. We will take up the hearing from there. These are the
last votes of the day, so I am not sure how many Members will
come back. But I know these Members are probably the most
hardworking Members in the whole Committee, so I think they
will be back.
We will see you back here. It will probably be about 45
minutes because we do have five votes on the floor. So we are
in recess.
[Recess.]
Mr. Chabot. The Committee will come back to order. The
gentleman from Indiana, Mr. Hostettler, is recognized for 5
minutes.
Mr. Hostettler. I thank the Chairman, and I thank the
Chairman for holding this very important hearing.
As we look at cases recently and in the past that the
Supreme Court has ruled on, I come to the conclusion, as was
stated by some of the witnesses, that basically the Court uses
whatever they want to use to determine what they believe to be,
what they feel is their own interpretation or application of
the Constitution for any particular situation: the use of
international law; as they see fit, the use of congressional
intent or noncongressional intent; a consensus of community
values, community views.
And I would like the witnesses just to kind of maybe put a
finer point on, maybe--or a blunt point would be better--in
responding to the notion that someone, a layman looking at,
which I am, looking at the views of the Court, would conclude
that based on what the Court wants to do with a particular
issue, particular case, they find an excuse or reason, a
rationale to come up with their viewpoints.
I would like to, before I ask you to respond to that, visit
for the record, to try to correct the perception that might
have been created earlier about the notion that Justice Kennedy
spoke to what was decided by in Bowers and commented on by
Chief Justice Burger with regard to the use of international
law.
Actually, later on in his decision, he actually says,
quote, ``To the extent Bowers relied on values we share with a
wider civilization, it should be noted that the reasoning and
holding in Bowers have been rejected elsewhere,'' end quote.
And it goes on to cite the European court of human rights in a
case, 2001; Modinos v. Cyprus, 1993; Norris v. Ireland, 1988.
So the Court was not merely looking. Kennedy was not--
Justice Kennedy was not merely looking at what had happened
prior to Bowers. But he also extrapolated and went forward to
and suggested that this decision should come down relative to
international norms as found in international proceedings.
But am I wrong in a layman's reading of Court decisions
that suggest that if the Court wants to rely on congressional
intent, deciding something in the majority, if it does and if
it doesn't; and if it wants to rely on international law or
other tribunals to come down on a decision that--in a way that
it--in science we refer to it as dry-labbing. And that is, you
know the answer to the question; you just now have to create
the hypothesis and the experiment to be fashioned around the
response that you want or that you know that you are going to
get out of the experiment.
Are we basically dry-labbing when it comes to Supreme Court
decisions in many cases?
Mr. Dinh. I will start. I hope you are wrong. And I hope
that the debate here is only one of form. But it is a very
important one of form, especially if you are wrong. That is
that judges are actually making honest, faithful decisions,
rather than dry-labbing or predetermining the result and then
making up the reasoning in order to justify it. Because that
truly would be a subversion, not only of the democratic
process, but the rule of law that the judges are sworn and
ordered to protect.
Perhaps that would be a violation of article VII that Mr.
Feeney was looking for elusively earlier. So I do hope that you
are wrong.
In all the evidence that I look at, I would give the
benefit of the doubt certainly to the Justices of the Supreme
Court. But because these are very close cases and they are
cases that divide society, in which the Supreme Court and
judges hold great sway, I think it is incumbent upon the judges
to rely upon not only appropriate, but truly legitimate sources
of interpretation so that the power of the robe, which is the
legitimacy of their word and of their interpretive techniques,
survives the inevitable political and social controversy that
would attend to any one of these very close calls of a
decision.
Mr. Chabot. The gentleman's time has expired. Did the
gentleman wish to get response from the others?
Mr. Hostettler. Unanimous consent to respond for the
others.
Mr. Chabot. Absolutely. The others Members can respond.
Mr. Whelan. Mr. Hostettler, what you so well described
about Justices just making it up and looking for whatever
arguments support their conclusions is exactly the case for six
Justices on the Supreme Court.
They use the label ``the living Constitution,'' and they
get all sorts of support from left-wing academics and also the
camouflage from the media. But that is exactly what they are up
to. There is no benefit of the doubt left to be accorded. We
have been seeing it for several decades now. And that is why we
need to have Justices who recognize that they themselves are
constrained by principles outside them in the manner that they
construe the Constitution and other Federal laws.
Mr. Rosenkranz. I think it is a terrific question. I think
the hyper-realist critic of the Court is that the result comes
first and that we can always find reasoning for whatever result
we prefer.
I, like Professor Dinh, like to think that this is a
caricature. Perhaps there is some truth to it, but surely it is
an exaggeration. And the main constraint on the judiciary is
that they have to write down their reasons, and for that
reason, we do some good when we rule some rationales off the
table.
We say, you can write down a number of different kinds of
reasons, but reasoning from current international law is
illegitimate. We rule that off the table. We make it harder to
reach certain results. We constrain judges to appropriate
methods of constitutional interpretation. It doesn't make it
impossible to do results-oriented judging, but it does make it
harder. So I think we move the ball down the field when we
engage in this exercise.
Ms. Cleveland. I would agree with Professor Rosenkranz that
the hyper-realist view is, we all hope, a characterization, and
there are very real constraints on what decisions judges can
reach. They are bound by the text of the Constitution. They are
bound by the structure. They are bound by precedent. They are
bound by history. They are bound by what society will tolerate.
And Justice O'Connor, among other Justices, has observed
that the Supreme Court never strays too far to the left or the
right of the society in which it is currently operating.
None of those constraints would prohibit any particular
individual from reaching a particular conclusion, but
collectively within the dynamic of the Court, they actually
play a very real role, as we all saw as law clerks, in
confining the range of movement that the judges have available
to them.
Mr. Hostettler. Thank you.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you. Thank you, Mr. Chairman. And I hope
the sponsors of the amendment won't be offended if I don't
agree with the idea that we ought to rely on the original
intent of the Constitution. Insofar as if we kept the original
intent, I would only have three-fifths of a vote on this
Committee and not a full vote.
Mr. Hostettler. Will the gentleman yield on that.
Mr. Scott. I will yield.
Mr. Hostettler. And that is an excellent point in that that
was changed by amendment--amending the Constitution. But the
notion of obtaining the consensus of the American people
outside of an article V process is, I think, not legitimate as
far as the Constitution is concerned.
And I thank the gentleman for yielding.
Mr. Scott. Reclaiming my time, let's kind of quick put this
in context.
If this resolution passes and the chief sponsor of the
resolution says, this will prevent judges from ruling in such a
way--Professor Cleveland, if this resolution passes, will it
have any effect on the judiciary?
Ms. Cleveland. It won't have any effect on the judiciary in
the sense that----
Mr. Scott. Will it have any legal effect?
Ms. Cleveland. It won't have any legal effect on the
Federal judiciary. It could have a chilling effect on what
judges have been--are willing to do.
Mr. Scott. We have been trying to chill the judges, but
this won't be doing anything more than anything else we have
been doing up here.
Let's--if we deny that, will we have phrases like ``cruel
and unusual''? Who do you think decides what is cruel and
unusual without taking a global view on it?
Why shouldn't--Professor Cleveland, why shouldn't the
courts take into consideration that in putting juveniles to
death we are the only ones in the world doing it? Doesn't that
kind of inform us as to what is cruel and unusual?
Ms. Cleveland. If the United States is the only country in
the world imposing the punishment, I would submit to you that
that is truly unusual.
Mr. Scott. If we waited for judges--if we waited for
legislatures to change the rules rather than letting activist
judges change the rules, could Brown v. Board of Education ever
have been decided? Could we have eliminated segregated public
schools by waiting for the legislative branch and State
legislatures to change the results?
Ms. Cleveland. It would have taken a long time given the
limitss on African-Americans voting in southern States and
elsewhere.
Mr. Chabot. Will the gentleman yield? That was reversed in
bad previous court decisions.
Mr. Scott. You are absolutely right. Activist judges
overturned properly enacted State laws requiring segregated
schools.
Mr. Scott. Since the Committee is so fixated on marriages,
let's try Loving v. Virginia. If we had to wait for Virginia to
change the law on mixed marriages, would we still be waiting.
Professor Cleveland, do you see any evidence that Virginia
anywhere along--since the 1960's, would have actually changed
the law?
Ms. Cleveland. Again----
Mr. Scott. I served on the legislature for 15 years. I can
tell you there is a lot of stuff that we thank the judicial
branch for deciding for us because we never would have gotten
around----
Ms. Cleveland. Well, in the same way, in the Lawrence case,
the Texas homosexual sodomy statute had not been enforced by
the Texas government for years. And, in fact, it had become
almost impossible to challenge it because the State of Texas
was unwilling to enforce it. But the legislature wouldn't have
repealed it.
Mr. Scott. I guess we just want to keep this in context
that whether we pass this or not won't have any effect on the--
will have no legal effect on whatever we do. So I will yield
back the time.
Mr. Chabot. The gentleman yields back his time.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. Thank you. Thank you, Mr. Chairman. And I do
appreciate the testimony on the part of the witnesses.
And so sometimes it is a little hard to keep a little flow
of continuity here when we run off to vote, but a number of
things in the previous testimony occur to me and one is that a
number of you have been clerks for Supreme Court Justices and
you have got a sense of how things flow inside those chambers.
And so, you know, I am watching more and more cases being
decided--or I will say, considered--that reference and cite
foreign law. And it seems to me that the incidence of the
citing of foreign law is growing significantly and
dramatically.
And so I start my first question with Mr. Dinh.
I understand you clerked for Justice Scalia. And I know
that you do a lot of the research and the clerks do a lot of
the research. But since this incidence of foreign law is coming
up consistently more, is there a reason for that? Are you
digging back into foreign law books? Are there people that are
staff people that are designated to do this type of research?
For me, it wouldn't occur to me to look at Chinese law or
United Kingdom law or Somali law or Zimbabwean law as a
resource. Who is creative enough to even go look at that law
before it is cited?
Mr. Dinh. Thank you very much for that question, sir.
I did not work for Justice Scalia. I clerked for Justice
O'Connor. Otherwise, I would not have been looking at foreign
law sources. But I think your question is a very good one.
The Courts, in the words of Justice Scalia--then Judge
Scalia--are not roving boards of inquiry. They are not there in
order to find and solve all the problems of the world according
to their own life and doing their own research on the Internet
or in Zimbabwe or elsewhere, but rather depend upon the
research and the arguments presented to them by the lawyers.
And I frankly go into the third point of my opening
statement. I frankly do not have very much faith--aside from
all of the jurisprudential and democratic objections, I do not
have very much faith in the ability of domestic judges and
lawyers to get foreign law right, because at the end of the
day, we are not steeped in those cultural and legal traditions
and we end up cherry-picking the ones that support our
predelictions.
Mr. King. I did hear that part of your testimony--although
I was not attentive when you were introduced, I did not hear
that, Mr. Dinh. I apologize.
Mr. Whelan, Mr. Dinh has testified that he believes that
material comes from the attorneys. Would you speculate as to
whether that is fully the case, or do you believe that there is
some research that is done from inside the Supreme Court
chambers as with regard to foreign law? Are all of these
citings, can we index those back to briefs that have been
presented to the Court in these particular cases?
Mr. Whelan. Well, I would only be speculating and certainly
wouldn't want to speak to anything that I witnessed, though, of
course, being a clerk for Justice Scalia, I did not witness any
of that.
I think what you see now is a dynamic where the Court, six
Justices at least, have signaled their strong interest in
foreign law as a potential resource. So lawyers, in turn, will
be looking to provide those selective foreign legal authorities
that support their positions, and Justices who want to cite
those materials will do so. And I think you have a downward
spiral as a result.
Mr. King. Thank you.
And Mr. Rosenkranz.
Mr. Rosenkranz. I would just add to that that the research
into foreign law is an extremely elaborate and time-consuming
process, which is another great cost of this trend. So as has
been pointed out, these sources are found by lawyers, and it
takes them hours of billable time.
And the question is, is this a good use of social
resources? I think probably not.
Mr. King. I am watching the clock tick down. I would be
very interested in Professor Cleveland's answer.
And I have something I need to do in the last minute, and
that is--this is the foreign travel over the last 6 years of
the Justices. And in this notebook here--the bookmark is the
Constitution, by the way--is a spread sheet and a chart of the
Justices' foreign travel and a list of where they have gone and
who has paid for the trips.
And then--I haven't done a proper analysis to make a
presentation before this Committee, but I can point out that
in, for example, June of 2000, Justice Kennedy went to China;
and in June and July of 2001, Justice Breyer went to China; and
in October of 2001, Justice Kennedy went back to China; and in
September of 2002, Justice O'Connor went to China; and then in
the Roper case in March 1, 2005, all of them cited Chinese law.
That is one example.
And I think history is replete with this. And so it may not
be that--it may be that the research that is presented is
presented by attorneys and in the briefs, but it might also be
that their respect for this foreign law is cultivated on
foreign trips, paid for by foreign entities. And that is the
point I hoped to make.
I thank you, and I yield back the balance of my time.
Mr. Chabot. The gentleman yields back his time.
The gentleman from Florida, the principal sponsor of the
bill, along with Congressman Goodlatte, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman. I thank all the
witnesses. I think this is a fascinating discussion. I refer to
it as a national civics lesson about the appropriate role of
judges in our system of Government. And my friend from Virginia
suggested that all we could really hope for with the resolution
is to chill certain activities from the bench; and I have to
admit that that is entirely what some of us intend to do with
this.
We would like to chill the Justices right out of article I
legislative powers and back into article III. We would like to
chill the article II, importing treaties; that we refused to
sign, like the 37th article, for example, in the Roper case.
We would like to chill them into respecting a Republican
form of government in article IV. We would like to chill them
out of amending the Constitution other than article V. And we
would like to chill them back into the Supremacy Clause.
So this is entirely designed to chill certain behavior and
activity.
I have a one-word question and am asking for a one-word
answer from each of you so we can get to a couple of things
very quick.
Dean Koh has referred to the six-member majority, including
Justice O'Connor, who intends to retire, as the
``transnationalist Justices.'' and if that is a fair
description--and I buy it--of the majority, do we have a term
for the three Justices that are remaining fixed on the
Constitution without reference to foreign law?
And I will give each panelist, you know, a second or two to
come up with one. Why don't we start with Mr. Dinh?
Mr. Dinh. Traditionalist.
Mr. Whelan. Two words, American originalist.
Mr. Rosenkranz. Textualist.
Ms. Cleveland. Professor Koh uses ``nationalist.''
Mr. Feeney. And you adopt that term, Professor?
Ms. Cleveland. It is a possible term.
Mr. Feeney. One of the things I am very interested in is
that Justice Ginsburg, off the bench, has tried to ragsize the
use of references to foreign law in interpreting basic
constitutional rights among other things.
And she refers us to the Declaration, and she talks about
how the Founding Fathers started out with a decent respect for
the opinions of mankind. But everywhere she gives that talk,
she refuses to include the rest of the sentence, which was that
because of our respect for the opinions of mankind, we are
required to, quote, ``declare the causes which impel them,''
meaning the States and colonies and people, ``to separation.''
So our respect was limited to the notion that we owed
people a discussion, an explanation, of exactly why we were
separating ourselves from reliance on foreign law. And I think
it is really disingenuous of her to continue to repeat that
phrase as justification for what she is doing.
I want to ask a theoretical question, and I would like the
three folks that sort of agree that Feeney-Goodlatte House
Resolution 97 is an appropriate message to Federal Justices.
Given the fact that in the Atkins decision we overturned
American laws given to us by legislators based on, among other
things, the Zimbabwe approach to folks with mental disabilities
and the death penalty, given the fact that in Lawrence we
referred to the European courts human rights attitudes toward
sodomy to again overturn not only elected representatives but
their own precedent; and of course the Roper decision, where
the U.N. Convention on the Rights of Children, which we have
not adopted, which was essentially adopted and ratified for us
by the Court.
Supposing that I were an activist judge who was pro-life,
and supposing this approach is appropriate, could I now justify
overturning the precedent established in Roe v. Wade, in part,
largely due to the fact that the attitudes through much of the
globe do not permit abortion on demand, which is, to some
extent, what Roe requires of us?
If this approach is legitimate jurisprudence--we start with
Mr. Dinh--do you think it would be inappropriate judicial
activity for a judge offended by the decision in Roe to look at
global attitudes of abortion on demand?
Mr. Dinh. It is a very big ``if,'' but if the ``if'' holds,
then I agree with you. And, yes, activism works both ways. And
once you open up the Pandora's box of illegitimate sources of
law, then it does not stop it one way or the other.
Mr. Whelan. I have a two-part answer.
First, Roe is wrong no matter what. You don't need to look
to foreign law to find arguments for that. All Americans ought
to recognize that it is time that the American people be
restored their power to determine what abortion policy ought to
be in the States.
Second, again, though, if you grant your premise, a Justice
would recognize that the abortion regime that has been imposed
on this country is a regime more radical than that that exists
in any virtually any country in the world. We don't need to
look to parts of the world where abortion itself is not lawful
generally. Even in Europe, as Mary Ann Glendon has pointed out,
the laws there are far more moderate than the radical regime we
have in this country.
Mr. Feeney. Mr. Rosenkranz.
Mr. Rosenkranz. Sir, you are quite right. And I believe
that it brings us back to Congressman Hostettler's question in
which we are left with the distinct impression that the Court
is not doing this systematically, but is doing it selectively
to achieve the results that they want to achieve.
Mr. Feeney. Professor?
Ms. Cleveland. In the 198Os, the Reagan administration
argued to the Court that the right to choose should be limited
based on foreign precedents. And I think that is an argument
that is available to attorneys before the Court.
Mr. Feeney. Should Justices use it? I am not asking what
lawyers can argue; they ought to argue anything that can win if
it is ethical. But should Justices use it?
Ms. Cleveland. In all of these contexts, the question is
part of a much broader package of issues that the Court has to
consider regarding the particular constitutional norm that is
presented.
So in answering that question, I would say that the Court
would have to look at what the law that it was confronted with
was. What it was--how it was being urged to modify Roe, how
significantly that contradicted our established doctrine and
precedent; and all of these things would go into the
consideration of the decision.
Mr. Feeney. I thank the panelists and yield to the
Chairman.
Mr. Chabot. Thank you. The gentleman's time has expired.
We are not going to another round, but the gentleman from
New York has asked to ask one additional question, and we have
granted that right.
Mr. Nadler. Thank you. I appreciate the indulgence of the
Chair. I just want to ask Mr. Whelan a question. That remark
you made just a moment ago raised in my mind--you talk about
Roe v. Wade and you say it is it is obvious Roe v. Wade is
wrong, all Americans should acknowledge that Roe is wrongly
cited and that it was wrong that the American people presumed
because their legislatures ought to decide on the legality of
abortions in the States. Is that what you said, essentially?
Mr. Whelan. That is essentially correct.
Mr. Nadler. My question is the following: Many people think
that the real goal of certain legislation such as the--what was
the bill? I forgot what we call it, the title of the bill to
recognize that two separate crimes, an assault on a pregnant
woman with a fetus?
Mr. Chabot. Will the gentleman yield? The Unborn Victims of
Violence Act?
Mr. Nadler. The Unborn Victims of Violence Act, yes.
That the real goal of that is to establish the fetus'
personhood and that if you establish the fetus' personhood
under the 14th amendment, then under the 14th amendment you
cannot deprive a person of life, liberty or property without
due process of law; and that if we were to establish that a
person is a--I'm sorry, that a fetus is a person under the 14th
amendment, then if Roe were to be overturned, the rationale
might not be that it is simply wrong.
In deciding that, therefore, the implication is that State
legislatures can do what they want one way or the other, but
that a fetus is a person under the 14th amendment. Therefore,
you cannot deprive a person of life, liberty or property
without due process of law; and therefore, no State legislature
nor Congress may permit abortion under any circumstances
because that would be a violation of the 14th amendment.
Are you saying that you would regard that as wrong
reasoning, or you just didn't think of it when you said that
getting rid of Roe would enable the States to do what they
want?
Mr. Whelan. Well, I certainly follow that. I think the
reasoning that you attribute to people is clearly not the
correct reasoning.
I don't think those who support the Laci Peterson bill are
interested in some grand concoction of what the word ``person''
means in the 14th amendment, nor do I think that anything this
Congress does statutorily to protect unborn human beings--
beings that are, after all, members of the species Homo sapiens
from the moment of conception--would have any impact on the
word ``person'' in the 14th amendment.
I have testified as to my position that unborn human beings
are not persons within the meaning of the 14th amendment. And,
you know, the so-called ``conservative'' approach to the
abortion issue, those who oppose Roe, recognize merely that the
issue ought to be restored to the people to decide.
I think, frankly, with all respect, the rest is scare-
mongering.
Mr. Nadler. I don't know if it is scare-mongering. It just
scares me.
Thank you very much.
Mr. Chabot. The gentleman yields back.
In follow-up to the gentleman's point, if I could make one
point, I think many people believe that all the acrimony that
has gone on for years relative to the abortion debate, much of
it could have been avoided had it not been the Supreme Court
that acted on its own. If this had occurred because the elected
representatives of the people made this decision one way or the
other thing, then I think----
Mr. Nadler. Different States.
Mr. Chabot. --it would have been much less acrimonious, and
people would not have felt that the decision was just handed
down and forced upon us, and that the people had no real input
on such an important decision in this country.
So I think that the Supreme Court--and I obviously think
Roe was wrong and would like to see it overturned; I have never
made any secret of that I am strongly pro-life, but
nonetheless, I think that decision was most unfortunate, not
because of so many lives that----
The gentleman from Iowa is recognized. I was starting to
ramble there anyway, so perhaps Mr. King got me off the hook.
The gentleman from Iowa.
Mr. King. I thank the Chairman. I will try not to belabor
this point. I appreciate the privilege of making a quick point.
It is a question of curiosity, that I would very much like
to present to Professor Cleveland particularly, because I
didn't get to you. But it is not the same question, and it is a
point that I think is a central point here that has not been
made.
And that is, the Constitution is a contract that was
ratified by the several States in roughly 1789 when most of the
consensus--and that contract is a clearly defined document that
says, we have an agreement amongst the States, and every State
that enters the Union signs on to that contract. It is an
irrevocable contract; and that was resolved by the Civil War
when Lincoln took that stand.
And yet today, we have come so far away from the text of
the Constitution that I would defy any modern-day legal
scholar, let alone some future historian-archaeologist to try
to divine the Constitution by reading through whatever mass of
case law is out there. It seems to me to be impossible, even
for a strict constructionist court, to work their way back to
the Constitution given this mass of case law that we have out
here.
What is the meaning of the Constitution now, today? Has it
just been a transitional document that got us to this point in
history where the judges now run society? Is it an artifact of
history, Professor Cleveland?
Ms. Cleveland. I think that is a bigger question than can
be answered right here. But I think it is important to
recognize that the Constitution is very sparsely drafted. It
uses some very general language, deliberately, because it was
intended to survive through the centuries.
So the cruel and unusual punishments clause, you know, we
were talking about the Roper case. The Court is trying to
figure out how you decide what is ``cruel'' and what is
``unusual.'' One way you decide what is ``unusual'' is to look
at what is an uncommon punishment. I don't think that their
decision in Roper strayed significantly from that text at all.
I think it was quite honest to it.
``Due process,'' similarly, is a concept that is general;
it changes over time with conceptions of right and wrong. And
the drafters of the Constitution deliberately wrote a document
that would have the flexibility to tolerate change in human
existence.
Mr. King. Let's take an easy one. Let's talk about Kelo
where they struck the word ``for public use'' from the fifth
amendment. That one should be an easy one for us to get some
consensus on.
Would you agree that that was a sharp amendment to the
Constitution that took place with impunity by the Supreme
Court?
Ms. Cleveland. I haven't read the case. I would prefer not
to comment on it.
Mr. King. Thank you.
Mr. Chabot. We will make this the last response if we can,
Mr. King. We won't be having a second or third round here.
Mr. Whelan. Kelo is a great example of how the left on the
Court ignores rights that are in the Constitution and makes up
rights that aren't.
Mr. King. Thank you, Mr. Chairman, and thank you minority
party. I yield back.
Mr. Chabot. We want to thank all the Members for being here
today. We want to thank especially our panel for their
excellent testimony in helping us to consider this very
important issue.
So if there is no further business to come before the
Committee, we are adjourned. Thank you.
[Whereupon, at 6:20 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Tom Feeney, a Representative in
Congress from the State of Florida
Six U.S. Supreme Court Justices--approvingly described as
``transationalists'' by Yale Law Dean Harold Koh--have increasingly
expressed disappointment in the Constitution we inherited from the
Framers and disdain for certain laws enacted by democratically elected
representatives.
With disturbing frequency, these Justices have simply imported law
from foreign jurisdictions, looking for more agreeable laws or
judgments in the approximately 191 recognized countries in the world.
They champion this practice and fancy themselves participants in
some international scene of jurisprudential thought. In recent
speeches, several Justices have referred to the ``globalization of
human rights'' and assumed a ``comparative analysis'' when interpreting
our constitution.
Mr. Goodlatte, I, and others on this Committee hope to start a
great civics debate on the constitutionally appropriate role of judges
in this Republic. This is why we asked Chairman Chabot to conduct
hearings on this subject.
If Americans believe that the laws of another nation are superior
to ours, they bring that idea to the attention of their elected
representatives and move that policy through the legislative process.
But if foreign laws are imposed on Americans by five unelected
Justices, then rule by ``philosopher kings'' has replaced rule by ``We
the People.'' And we will have forgotten a reason for our nation's
birth. For in the Declaration of Independence's list of grievances
against King George III, is: ``He has combined with others to subject
us to a jurisdiction foreign to our Constitution, and unacknowledged by
our laws.''
Despite our country's fierce protection of its sovereignty for over
200 years, judges at the highest levels of the federal judiciary cannot
resist rationalizing otherwise baseless interpretations of American law
by reference and incorporation of international law. The latest example
is Roper v. Simmons, where the Supreme Court used foreign law to
determine whether the death penalty for a 17 year old murderer violated
the Eighth Amendment.
Justice Kennedy's majority opinion included an extended discussion
of the relevance of foreign law to interpreting the Eighth Amendment.
Not limiting himself to international law, Justice Kennedy went further
to cite international political opinion opposing the death penalty.
Never mind that back in America, a majority of states with the death
penalty subject 17 year old murderers to it. Or in my home state of
Florida, 70% of our voters favored a state constitutional amendment to
permit such an application of this penalty.
To support overturning decades of precedent, the Supreme Court
found it necessary to cite the International Covenant on Civil and
Political Rights and the United Nations Convention on the Rights of the
Child. Yet it ignored that the United States has specifically reserved
the question of the execution of juveniles in signing and ratifying the
former and has not ratified the latter.
I've reintroduced the Reaffirmation of American Independence
Resolution to again stress the sense of the House that international
influence should be removed from judicial interpretation of our
Constitution. This resolution states:
That it is the sense of the House of Representatives that judicial
interpretations regarding the meaning of the Constitution of the United
States should not be based in whole or in part on judgments, laws, or
pronouncements of foreign institutions unless such foreign judgments,
laws, or pronouncements inform an understanding of the original meaning
of the Constitution of the United States.
Despite their high rhetoric, transnationalists are results-oriented
judges who cherry pick through foreign law and precedent to find
reasons to overturn the democratically expressed views of their fellow
citizens. As Judge Posner has noted, this unrestricted citation of non-
United States law ``would mean that any judge wanting a supporting
citation has only to troll deeply enough in the world's Corpus Juris to
find it.''
In a telling irony, a consistent application of such jurisprudence
would result in strict limitations on abortion and free speech--
anathemas to most if not all transnationalists. Should America rely on
national laws of say Ireland in determining whether there is a
constitutional right to abortion? Or follow the lead of Zimbabwe where
journalists must be licensed by the government?
Ultimately, transnationalists fundamentally misunderstand their
country's origins. The American people founded and then repeatedly
defended this sovereign republic to ensure that they and not some
outside entity--be it King George III, the European Court of Human
Rights, or the United Nations--controlled their destiny. Yes, we
borrowed from other nations' legal traditions, especially the Anglo-
Saxon rule of law. But we always did so through the democratic process
found in our Constitution. Other countries are free to pursue their
notions of ``justice.'' That's why so many of our ancestors fled those
lands to come here.
The Reaffirmation of American Independence Resolution simply
confirms that tradition and our nation's sovereignty.
__________
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia
Mr. Chairman, thank you for holding this important hearing.
As you know, recently there has been a deeply disturbing trend in
American jurisprudence. The Supreme Court, the highest court in the
land, has begun to look abroad to international law instead of our own
Constitution as the basis for its decisions.
Supreme Court Justice Sandra Day O'Connor made a troubling
prediction last fall that the Supreme Court will rely ``increasingly on
international and foreign courts in examining domestic issues . . . ,''
as opposed to our Constitution, as the basis for its rulings.
Several western nations have begun to rely upon international
conventions and U.N. treaties when interpreting their own
constitutions, which is a frightening prospect, given that most of
these materials are crafted by bureaucrats and non-governmental
organizations with virtually no democratic input. The new Supreme Court
trend to cite these types of foreign authorities is a threat to both
our nation's sovereignty and the democratic underpinnings of our system
of government. Our nation's founders were well aware of this danger
when they drafted the Declaration of Independence, which declares that
King George had ``combined to subject us to a jurisdiction foreign to
our constitution and unacknowledged by our laws.''
The Supreme Court's trend is particularly troubling because it
comes at a time when the Court is deciding such fundamental issues as
the very wording of the Pledge of Allegiance, the meaning of the First
Amendment, and other issues that are uniquely American. Our nation's
judges, and Supreme Court justices, took an oath to defend and uphold
the U.S. Constitution--and it is time that Congress remind these
unelected officials of their sworn duties.
That is why I joined with my friend and colleague, Congressman Tom
Feeney, to introduce the Feeney/Goodlatte resolution, which expresses
the sense of Congress that the Supreme Court should not cite foreign
authorities when interpreting the U.S. Constitution.
This resolution sends a clear message that the Congress is not
willing to simply stand idly by and see our nation's sovereignty
weakened.
I believe the judicial branch is guaranteed a very high level of
independence when it operates within the boundaries of the U.S.
Constitution. However, when judges and justices begin to operate
outside of those boundaries, Congress must respond. We must be
steadfast guardians of the freedoms that are protected in the
Constitution of the United States of America.
Thank you again, Mr. Chairman, for holding this important hearing.
Prepared Statement of Public Citizen's Global Trade Watch
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