these materials do so because they embrace an essentially lawless, utterly unconstrained view of their own role as Justices.

It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that "At the heart of liberty is the right to define one's own concept of existence of meaning, of the universe, and of the mystery of human life." For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the limitless power to define for all Americans which particular interests those Justices think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure into which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own States and communities and the Nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.

Thus the broader long-term resolution to the problem that House Resolution 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices like Scalia and Thomas who understand that the Constitution constrains them to construe its provisions in accordance with the meaning those provisions bore at the time they were promulgated Justices, in short, who understand that the Constitution does not give them free rein to impose their own policy preferences on the grand questions of the day. Thank you.

Mr. CHABOT. Thank you.

[The prepared statement of Mr. Whelan follows:]

PREPARED STATEMENT OF M. EDWARD WHELAN III

United States House of Representatives

Committee on the Judiciary, Subcommittee on the Constitution Hearing on "H. Res. 97 and the Appropriate Role of Foreign Judgments 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.

Introduction

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 responsible self-government.

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

ɔreign laws and legal decisions. I broadly

embrace the views expressed by Professors John O. McGinnis, Jeremy Rabkin, and Michael D. Ramsey at that hearing. These witnesses carefully distinguished between proper and improper uses of foreign legal materials by American courts. They explained that consideration of the views and experiences of foreign jurisdictions is entirely appropriate in the formulation of moral and social policy, but that it is the function of Congress and state legislatures, not the courts, to make moral and social policy. They also discussed why a principled use of foreign legal materials would likely lead to a substantial reduction of rights in the United States, whereas an unprincipled use would merely provide cover for the Justices to implement their own policy preferences. Either way, they explained, reliance on foreign legal opinions would undermine the proper American understanding of what is fundamentally distinctive about our constitutional framework.

The transcript of last year's hearing suggests that some took solace in the understanding that the Court's use of foreign law was incidental at worst. Unfortunately, two developments since last year's hearing refute that understanding. These developments demonstrate that the threat posed by the Court's use of foreign law is real and growing. Rather than reiterate the points powerfully made by Professors McGinnis, Rabkin, and Ramsey, I will focus my written testimony on these developments and what they signify and portend.

As I will discuss, in its March 1, 2005, ruling in Roper v. Simmons, a five-Justice majority of the Supreme Court explained at length its view that the "overwhelming weight of international opinion against the juvenile death penalty" provided “respected and significant confirmation" for its ruling that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment's protection against “cruel and unusual punishment.” And a sixth Justice, although in dissent, approved of the majority's resort to foreign legal materials. Moreover, although the majority argued that there was precedent in the Eighth Amendment context for regarding foreign and international authorities as

“instructive,” there is nothing in the majority's approach that would limit use of these materials to this context. Indeed, in recent months, at least two Justices in the Roper majority have, in public

appearances, attempted to offer their own justifications for freewheeling resort to foreign authorities on a broad range of constitutional questions. The striking feebleness of their justifications provides ample testament to the illegitimacy of their enterprise.

House Resolution 97 is a fit and proper step in response to the Supreme Court's improper reliance on foreign law. The members of the House of Representatives have the right and duty to uphold the Constitution and to encourage the Supreme Court to construe the Constitution properly. By making clear that judicial interpretations of the Constitution “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," House

Resolution 97 would be a faithful exercise of that right and duty.

1. Roper v. Simmons

The most significant development since this subcommittee's March 2004 hearing is the Supreme Court's March 1, 2005, ruling in Roper v. Simmons. In that case, a five-Justice majority overturned the Court's 1989 ruling in Stanford v. Kentucky, 492 U.S. 361 (1989) and ruled that the Eighth Amendment's bar on “cruel and unusual punishments" prohibits the execution of a brutal murderer who was 17 years old at the time of his crime.

a. Facts

The facts of Roper warrant special attention, as they starkly illustrate how dismissive Justice Kennedy's majority opinion of the constitutional power of the people to decide through their state

representatives what laws ought to govern their own states. My summary and my specific quotations are drawn entirely from Justice Kennedy's majority opinion.

When he was 17, Christopher Simmons planned, instigated, and committed a brutal murder. "Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends.... Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could 'get away with it' because they were minors."

In the middle of the night, Simmons and a friend "entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, 'Who's there?' In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her."

"Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below."

"By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman 'because the bitch seen my face.""

Arrested the following day, Simmons confessed to the murder and performed a videotaped

reenactment at the crime scene.

At trial, Simmons did not call any witnesses in his defense in the guilt phase. At the penalty phase, the trial judge instructed the jurors that they could consider Simmons' age as a mitigating factor,