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22–494 PDF








H. Res. 97

JULY 19, 2005

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Serial No. 109–40

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

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PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution

STEVE CHABOT, Ohio, Chairman

MARK GREEN, Wisconsin

JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

PAUL B. TAYLOR, Chief Counsel
KIMBERLY BETZ, Full Committee Counsel
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DAVID LACHMANN, Minority Professional Staff Member


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

    The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution

    The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution

    The Honorable Tom Feeney, a Representative in Congress from the State of Florida, Subcommittee on the Constitution


Mr. Viet D. Dinh, Professor, Georgetown University Law Center
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Oral Testimony
Prepared Statement

Mr. M. Edward Whelan, III, President, Ethics and Public Policy Center
Oral Testimony
Prepared Statement

Mr. Nicholas Q. Rosenkranz, Professor, Georgetown University Law Center
Oral Testimony
Prepared Statement

Ms. Sarah Cleveland, Professor, University of Texas School of Law
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Tom Feeney, a Representative in Congress from the State of Florida

    Prepared Statement of the Honorable Bob Goodlatte, a Representative in Congress from the State of Virginia

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    Prepared Statement of Public Citizen's Global Trade Watch


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.
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    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.

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    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.

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    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.
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    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.
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    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.

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    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.
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    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.

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    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.
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    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.
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    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.
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    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.
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    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.


    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?
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    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.
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    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.

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    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:]


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    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.

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    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).
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    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. §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.
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    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,
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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.
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    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.


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    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.
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    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.''
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    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.
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    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:]






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    Mr. CHABOT. Mr. Rosenkranz, or Professor Rosenkranz, you are recognized for 5 minutes.


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    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.
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    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.
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    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.
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    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:]






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    Mr. CHABOT. Our final witness this afternoon is Professor Cleveland. You are recognized for 5 minutes, Professor.


    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.

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    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.
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    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.
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    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:]




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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.
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    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.
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    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?
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    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.

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    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.

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    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.
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    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.

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    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.


    Mr. CHABOT. The Committee will come back to order. The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.

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    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.
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    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.
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    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.
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    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.
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    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.
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    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?
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    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?

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    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.
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    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.
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    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.
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    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.
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    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.

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    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.''
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    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?
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    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.

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    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.
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    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.
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    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.

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    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——
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    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?
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    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.
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    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.]


Material Submitted for the Hearing Record

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    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.''
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    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.
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    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.

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    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.
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    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.





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