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Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173–74 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550-51 (1991); Air France, 470 U.S. 392. But see Olympic Airways, 540 U.S. 644.
Unfortunately, in this area, where consideration of the judgments of foreign courts has significance, our courts have not consistently looked to such judgments. In at least one instance, foreign decisions were not considered at all by the majority. See Olympic Airways, 540 U.S. 644. This failure to consider the decisions of the courts of other countries who are parties to the relevant agreement represents a failure to follow a well-established legal principle—to ensure, to the extent possible, the consistent interpretation and application of a single law.
Where two nations have jointly adopted a single law, it is consistent with accepted legal principles that an attempt should be made to provide for consistent interpretations of that law. “Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently." Id., at 660 (Scalia, J., dissenting).
The legitimacy of considering foreign interpretations of a common treaty derives not simply from the technicality that the courts are interpreting the same document. Rather, it stems also from the interaction with the democratic process. First, Congress in exercising its constitutional authority to ratify a treaty has the opportunity to decide whether or not to involve the judiciary at all by making the treaty self-executing. Even where Congress has afforded judges a role in enforcing and interpreting a treaty, it can specify the terms of such judicial involvement through reservations and other statutory tools. In fact, the preamble to some treaties, such as the Warsaw Convention, expressly recognize that intent and purpose-to provide uniform legal principles or a uniform manner of regulation. Convention for the Unification of Certain Rules Relating to International Transportation by Air preamble, Oct. 29, 1934, 49 Stat. 3000, 3014, T.S. No. 876 (reprinted at 49 U.S.C. $ 40105).
By contrast, in cases of purely American law, there are no corresponding democratic authorization of nor legislative checks on the reliance on foreign judgments. There is simply no way that I or any other citizen can affect how a foreign court would view a particular issue.
It is our own courts and not foreign courts that are tasked with interpreting our laws. The American judiciary is not independent of the Constitution and the laws of this country. Indeed, it is from the Constitution itself that any authority to interpret our laws vests in the judiciary. The Constitution does not separate and isolate us from other countries. It contains the treaty power, recognizing the need to cooperate and build relationships with other countries. It also does not limit or prevent our own lawmakers from looking to foreign laws and foreign court judgments in drafting, debating and developing our own laws.
Though most recent consideration of foreign legal trends has occurred in connection with social issues, courts could conceivably extend this practice to use foreign authorities when adjudicating other fundamental issues, including our approach to our own national defense. For example, we cannot tolerate a court's invalidating initiatives in the Wa on Terror on the grounds that some other nations ew those actions as incorrect or unwise. To give weight to foreign decisions on matters of American concern opens the door for consideration of foreign decisions on all matters, even those that should ultimately be matters for us alone.
Constitutional rights exist because of the Constitution itself. They do not derive from any source external to that document. It is through this contract between our government and our citizens that the government has the authority to enact laws and the courts have the authority to interpret them. The Constitution tasks our country's courts with the interpretation of the document. It is not within the purview of any foreign tribunal to interpret the meaning of any provision of our Constitution. Foreign views of how our Constitution should be interpreted should provide no instruction to our own courts; nor should our courts eschew their own responsibility of interpretation by relying instead on the views of foreign jurists. In the same way that the parties to a treaty should respect each other's interpretations of those mutually binding agreements, so too should American courts look to the understanding (as set forth in its text) the document was given by the actual parties to it-i.e., the American people at the time of its drafting and ratification.
The recent reliance on international sources raises issues of sovereignty and separation of powers, and ultimately the dilution of the power of the people in this country. As Justice Scalia explains,
We must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon
Americans through the Constitution. Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) (internal quotation marks and citations omitted).
This conclusion holds across the spectrum of interpretive theories. Indeed, it is perhaps most necessary for expansive methodologies, such as ones depending on "the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 99–101 (1958). Because such expansive strategies are less anchored in the Constitution's text, structure or history, a jurisprudential limitation on the geographic or jurisdiction sources of law is necessary to ensure that constitutional law remains predicated on neutral principles and not on the whims of individual judges or court compositions.
To be sure, legislative direction to the courts on how to interpret the Constitution may raise significant separation of powers concerns. This Resolution, however, does not provide such direction, or otherwise require the courts to adhere to any of its statements. Rather, the Resolution merely provides the sense of this body that interpretations of our Constitution should not be governed by foreign judgments or views.
It is wholly appropriate for the House of Representatives to provide its opinions on the interpretation of the Constitution, a document that its members, just as the members of the judiciary, have sworn to uphold and defend. It is certainly no more inappropriate than the all-too-often practice of federal judges, at all levels, to suggest legislative changes to Congress or even to make policy pronouncements on pending legislative matters.
In the final analysis, I conclude that there is a place for the consideration of foreign judgments, and that place is in the interpretation of treaties with those foreign nations. Where consideration of foreign judgments is inappropriate is in the arena of purely domestic laws, for only when a formal agreement has been reached via a ratified treaty to conduct ourselves as they do in other countries is such consideration appropriate in our democratic system. Thus, I support the declaration set forth in House Resolution 97 that “judicial interpretations regarding the meaning of the Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the Constitution of the United States." Mr. CHABOT. Mr. Whelan, you are recognized for 5 minutes. TESTIMONY OF M. EDWARD WHELAN, III, PRESIDENT,
ETHICS AND PUBLIC POLICY CENTER Mr. WHELAN. Good afternoon, Chairman Chabot and other Members of the Committee. Thank you for the opportunity to testify here today.
Mr. CHABOT. I am not sure the mike is on. If it is, you need to pull it a little closer.
Mr. WHELAN. Should be on now.
Mr. WHELAN. Good afternoon. Thank you for inviting me to testify here today.
Two recent developments confirm that the threat posed by the Court's misuse of foreign law is real and growing.
First is the Supreme Court's ruling in March in Roper v. Simmons. There, a five-Justice majority relied on international opinion as it held the execution of offenders who were 17 at the time of their offense violates the eighth amendment. And the sixth Justice, although in dissent, approved of the majority's resort to foreign law. The facts of Roper warrant special attention as they starkly illustrate how the same Justices who bow to the views of foreigners, are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country.
When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could get away with it because they were minors. In the middle of the night, Simmons and a friend broke into a woman's home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a State park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned, an unspeakably cruel death, in the waters below. Simmons confessed to the murder.
At the death penalty phase of his trial, the judge instructed the jurors that they could consider Simmons' age as a mitigating factor and the defense relied heavily on that factor. The jury recommended and the trial judge imposed the death penalty.
Overturning its own precedent, the five-Justice majority ruled that the death penalty for juvenile offenders violates the eighth amendment. In support of its ruling, it found what it called “respected and significant confirmation" in the “overwhelming weight of international opinion against a juvenile death penalty.” According to the majority, the fact that the United States, alone with Somalia in the world, has not ratified article 37 of the U.N. Convention, which contains an express prohibition on capital punishment for crimes committed by juveniles, supports its conclusion that the juvenile death penalty is unconstitutional.
But as Justice Scalia observed in dissent, “unless the court has added to its arsenal the power to join and ratify treaties on behalf of the United States," the United States' nonratification of article 37 undercuts rather than supports the majority's position. Scalia also points out that the Justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion.
Second, in recent months, at least two Justices in the Roper majority have made remarkably feeble efforts to justify free-wheeling resort to foreign law on a broad range of constitutional questions. Addressing a group of international lawyers, Justice Ginsburg resorts to kindergarten talk. “We can learn from others,” she says. “We can join hands with others.” We should “share our experience.”
But she never explains how a foreign court's decision on how a foreign law measures up to a foreign charter can have analytical value in construing our Constitution.
Justice Breyer argues that citing foreign judges might "give them a leg up” in dealing with legislators in their own countries. In short, he seems to think it part of his job to attempt to influence internal disputes in foreign countries. Beyond that, Breyer utters irrelevant platitudes like “Americans are human and so is everybody else,” and “our people in this country are not that much different than people other places.”
There is no legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions in our Constitution. The six Justices who resort to these materials do so because they embrace an essentially lawless, utterly unconstrained view of their own role as Justices.
It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one's own concept of existence of meaning, of the universe, and of the mystery of human life.” For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the limitless power to define for all Americans which particular interests those Justices think should be beyond the bounds of American citizens to address through legislation.
The Framers established a constitutional structure into which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own States and communities and the Nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.
Thus the broader long-term resolution to the problem that House Resolution 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices like Scalia and Thomas who understand that the Constitution constrains them to construe its provisions in accordance with the meaning those provisions bore at the time they were promulgated—Justices, in short, who understand that the Constitution does not give them free rein to impose their own policy preferences on the grand questions of the day.
PREPARED STATEMENT OF M. EDWARD WHELAN III
United States House of Representatives
in the Interpretation of American Law
July 19, 2005
Testimony of M. Edward Whelan III
Good afternoon, Chairman Chabot. Thank you very much for inviting me to testify before you
and your subcommittee on this important subject.
I am Edward Whelan, president of the Ethics and Public Policy Center. The Ethics and Public
Policy Center is a think tank that for three decades has been dedicated to exploring and explaining how
this country's foundational principles ought to inform and shape public policy on critical issues.
The Ethics and Public Policy Center's program on The Constitution, the Courts, and the Culture,
which I direct, explores competing conceptions of the role of the courts in our political system. This
program focuses, in particular, on what the battle over the proper role of the courts means for American
culture writ large—for the ability of the American people to function fully as citizens and to engage in
Two weeks ago Americans celebrated the 229th anniversary of the Declaration of Independence.
In that document, representatives of the thirteen United States of America proclaimed that these States
were “dissolv(ing) the Political Bands which (had) connected them with” Great Britain. The “History of
repeated Injuries and Usurpations” that the Declaration recited against King George III included the
charge that “He has combined with others to subject us to a Jurisdiction foreign to our Constitution."
In March 2004 this subcommittee held an outstanding hearing on the perceived threat by six Supreme Court Justices to combine with each other to subject American citizens to interpretations of the
United States Constitution that give weight to cor
preign laws and legal decisions. I broadly