Over the past several years, we have seen an increasing number of circumstances where U.S. judges have interjected international law into their rulings, allowing laws from other countries to supersede the laws of our own Constitution.

I believe this is wrong. It is the responsibility of our Courts to interpret the U.S. Constitution as was written by our Founding Fathers.

I recently cosponsored a bill to prevent the misuse of foreign law in Federal courts. H.R. 973 plainly states that “In any court created by or under Article III of the Constitution of the United States, no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law.”

You can read more about this legislation in an article written by the bill’s sponsor, Congresswoman Sandy Adams, in the Washington Times.

Our laws should be measured against our Constitution, not international precedents. What are your thoughts on this bill?

UPDATE (12/14/2011): The House Judiciary Committee has compiled the following summaries of U.S. court cases relying on foreign law:

Last year, in Graham v. Florida, the Supreme Court issued a blanket holding that the Eighth Amendment bars life without parole sentences for all non-homicide juvenile defendants, citing a "global consensus "against the sentencing practice. This "global consensus" was used to buttress the Court‘s claim that "evolving standards of decency" barred such sentences. The Court reached this conclusion despite that, at the time of the decision, 37 states and the District of Columbia allowed juvenile life without parole sentences. Nonetheless, the Court apparently placed a premium on the judgment of foreign legislators over American legislators in interpreting the bounds of "cruel and unusual punishment" under the American constitution.

In the 2005 case Roper v. Simmons, the Court relied on international law as evidence of an international consensus against the death penalty for juvenile offenders in holding that the Eighth Amendment prohibited the death penalty for a 17-year old who plotted and executed a plan to murder an innocent woman by breaking in to her home, binding her, wrapping her entire face in duct tape, driving her to a bridge, and throwing her into the Meramec river in Eastern Missouri. Justice Scalia wrote in dissent, joined by Justice Thomas and Chief Justice Rehnquist, that "Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage."

In Lawrence v. Texas, the 2003 decision striking down a Texas statute prohibiting same-sex sodomy, Justice Kennedy, writing for a majority, cites for support a decision by the European Court of Human Rights allowing homosexual conduct as evidence of a lack of world consensus on the illegality of such conduct. Whatever one‘s views on that issue, it should be evident that the relevant consensus behind American law is not a world consensus, but rather the consensus of those in the United States on the meaning of the words used in the Constitution and state laws when originally enacted.

As Justice Scalia stated in his dissent in Lawrence, "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is ... meaningless dicta. Dangerous dicta, however, since this Court ... should not impose foreign moods, fads, or fashions on Americans."

In 2002, in Atkins v. Virginia, Justice Stevens, in the majority opinion, struck down laws allowing the mentally retarded to be sentenced to death, on the grounds that "[t]he practice ... has become truly unusual, and it is fair to say that a national consensus has developed against it."

Strikingly, the footnote following that sentence, presumably to support the proposition of a "national consensus," cites to the views expressed in the brief filed in the case by the European Union. This appears to have been an attempt to hide the fact that no such "national consensus" existed at the time, as the laws of 20 of the 38 states allowing capital punishment allowed such executions at the time.

In Grutter v. Bollinger, which upheld the use of racial preferences in university admissions, Justice Ginsburg, in a concurrence joined by Justice Breyer, began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary "maintenance of unequal or separate rights for different racial groups." She then she cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which, Justice Ginsburg noted in a speech a few weeks later, "sadly, the United States has not ratified."

The opening sentence of the Fifth Amendment is a guarantee that "No person shall be held to answer for a capital ... crime, unless on a presentment or indictment of a Grand Jury ..." Further, the Double Jeopardy Clause of the Fifth Amendment is a prohibition against being "twice put in jeopardy of life" for the same offense, and the Due Process Clause requires "due process of law" before an accused can be "deprived of life ..."

Several years earlier, in Thompson v. Oklahoma, Justice Stevens in a plurality opinion stated that "The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by ... the leading members of the Western European community." He then cited the laws of West Germany, France, the Soviet Unions, Canada, the Scandinavian countries, and Switzerland, among others, many of which prohibit capital punishment entirely, despite the fact that the U.S. Constitution explicitly provides for capital punishment in multiple constitutional provisions.

And in a concurring opinion in Nixon v. Shrink Missouri Government PAC, Justice Breyer cited opinions by the European Commission of Human Rights and a Canadian court for the proposition that campaign finance laws should be judged according to various balancing tests.

The citation of foreign decisions in majority Supreme Court opinions follows their earlier citation largely in dissenting opinions. Justice Breyer, joined by Justice Stevens in his dissent in Printz v. United States, drew on the experience of the federal systems in Germany and the European Union in his analysis of the appropriate relationship between the individual American states and the federal government. As Justice Scalia appropriately wrote for the Court in the majority decision in that case – a decision that was joined by Justices O‘Connor and Kennedy whose positions appear to have since changed – "Justice Breyer's dissent would have us consider the benefits that other countries, and the European Union, believe they have derived from federal systems that are different from ours. We think such comparative analysis inappropriate to the task of interpreting a constitution ..."

Even earlier, Justice Brennan, dissenting in Stanford v. Kentucky, stated that the "rejection [of capital punishment] generally throughout the world, provide to my mind a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders ..." To this the majority of the court replied, "We emphasize that it is American conceptions of decency that are dispositive."