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1. “[1]n some of these countries there are institutions, courts that are trying to make their way in

societies that didn't used to be democratic, and they are trying to protect human rights, they are trying to

protect democracy. They're having a document called a constitution, and they want to be independent

judges. And for years people all over the world have cited the Supreme Court, why don't we cite them

occasionally? They will then go to some of their legislators and others and say, See, the Supreme Court

of the United States cites us.' That might give them a leg up, even if we just say it's an interesting

example."

The idea that Supreme Court Justices should craft their opinions with an eye towards influencing

internal political struggles in foreign countries is truly a remarkable misconception of the judicial

role.

2. “I think I may have made what I call a tactical error in citiny a case from Zimbabwe--not the

human rights capital of the world. But it was at an earlier time-- Judge Gubei (ph) was a very good

judge. So I had written this. And of course I looked I don't think that's controlling. But I'm thinking,

Well, on this kind of an issue you're asking a human question, and the Americans are human-and so is

everybody else. And I don't know, it doesn't determine it, but it's an effort to reach out beyond myself

to see how other people have done—though it does not control.” (Emphasis added.)

Of course foreigners are human. That proposition does not remotely explain how a foreign

count's decision on how a foreign law measures up to a foreign charter can or should have

analytical value (or any other force) in construing our Constitution.

3. “Well, it's relevant in the sense that you have a person who's a judge, who has similar

training, who's trying to, let's say, apply a similar document, something like cruel and unusual or—there

are different words, but they come to roughly the same thing—who has a society that's somewhat

structured like ours. And really, it isn't true that England is the moon, nor is India. I mean, there are

human beings there just as there are here and there are differences and similarities.... And the fact that

this has gone on all over the world and people have come to roughly similar conclusions, in my opinion,

was the reason for thinking it at least is the kind of issue that maybe we ought to hear in our court,

because I thought our people in this country are not that much different than people other places."

(Emphasis added.)

It is a foundational principle of this nation that “all Men are created equal (and) are endowed by

their Creator with certain unalienable Rights.” In this fundamental respect, and many more incidental respects, it is clearly the case that the American people “are not that much different"

from foreigners. One obvious relevant difference, however, is that “We the People of the United

States” are governed by the Constitution of the United States, and people who live in other

countries are govered by their own countries' laws. Breyer's observation has no weight in

explaining why provisions in our Constitution—which was established in an exercise of the principle that "Governments ... deriv(e) their just Powers from the consent of the Governed”

should be construed in light of foreign laws or legal decisions that either reflect the consent of

the governed in those countries or were imposed on them.

Conclusion

No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on

contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution.

Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain

why it would be proper to look to some contemporary foreign and international legal materials, but not

others, to construe the Constitution in some instances but not in others. The six Justices who

nonetheless resort to these materials do so because they embrace an essentially lawless—i.e.,

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 unconstrained power to define for all Americans

which particular interests they think should be beyond the bounds of American citizens to address

through legislation.

The Framers established a constitutional structure under 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.

It follows that the broader long-term solution to the problem that H. Res. 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 they bore Mr. CHABOT. Mr. Rosenkranz, or Professor Rosenkranz, you are recognized for 5 minutes.

at the time they were promulgated and that it does not permit them to impose their own policy

preferences on the grand (or minor) questions of the day.

TESTIMONY OF NICHOLAS Q. ROSENKRANZ, PROFESSOR,

GEORGETOWN UNIVERSITY LAW CENTER Mr. ROSENKRANZ. I thank you, and I thank the Committee for the opportunity to express my views on this important topic.

I largely agree with what has been said so far, so I will limit myself to three brief comments:

First, I will discuss the separation of powers implications of directing a resolution regarding constitutional interpretation to the judiciary.

Second, I hope to show that the reliance on current foreign law undermines the bedrock principle of democratic self-governance.

Third, I will explore whether the Congress should also take up the

same issue in the context of statutory interpretation.

The first point I wish to make is that House Resolution 97 is consistent with separation of powers. At a prior hearing before this Committee, my colleague, Professor Vicki Jackson, suggested that legislative directions to the courts on how to interpret the Constitution raise serious separation of powers questions. She may well be right.

But the key point today is that House Resolution 97 does not give directions to the courts. It does not purport to bind them. It simply expresses the sense of the House on this question. Because the resolution does not bind the judiciary, it cannot be objected to on separation of powers grounds. Indeed it should be applauded on these grounds. It is entirely proper for Congress to inform the courts of its views on constitutional interpretation. It is particularly appropriate when the method under discussion has such dramatic implications.

Which brings me to my second point. The current predilection for using contemporary foreign law to interpret the U.S. Constitution necessarily entails a rejection of the quest for original meaning. Simply put, those who would cite contemporary foreign law necessarily embrace the notion of an evolving Constitution.

The notion of the Court updating the Constitution to reflect its own evolving view of good government is troubling enough, but the notion that this evolution may be brought about by changes in foreign law raises fundamental issues of democratic self-governance. This, I think, puts the finest point on what is really at stake here. When the Supreme Court declares that the Constitution evolves, and declares further that foreign law affects its evolution, it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.

Moreover, it might take only a single foreign country to tip the scales and create a consensus in the eyes of the courts. And there is no reason why a foreign country could not do this self-consciously. Indeed, France has expressly announced that one of its priorities is the abolition of capital punishment in the United States. Yet surely it would come as a shock to the American people to imagine the French Parliament deciding whether to abolish the death penalty not just in France, but also in America.

After all, foreign control over American law was a primary grievance of the Declaration of Independence. King George III had “subject[ed) us to a jurisdiction foreign to our constitution.” This is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control is inconsistent with basic principles of democratic self-governance, reflected both in the Declaration of Independence and in the Constitution itself.

The third point I wish to make is that while the resolution is limited to interpretation of the Constitution, courts often rely on foreign and international law in the interpretation of other federal law as well. Now, Professor Dinh has explained how foreign judgments may be relevant to the interpretation of treaties. A different question is whether international law may be relevant to the interpretation of Federal statutes.

Under current doctrine, courts regularly bend over backwards to construe Federal statutes to be consistent with international law, even when the text of the statute would perhaps be a different construction. Now, particularly in light of the dramatic expansion and metamorphosis of customary international law since World War II, Congress may want to consider whether it approves of this doctrine.

If it decides that the answer is no—that it would prefer for its statutes to be read according to their plain terms without reference to international law—then it might consider a subsequent resolution parallel to the present one, expressly rejecting the general use of international law in interpreting Federal statutes.

Indeed, while congressional mandates to foreign-Federal courts regarding constitutional interpretation may raise separation of powers concerns, congressional mandates regarding statutory interpretation generally do not. Thus Congress could, in fact, go further and enact a mandatory statute along the following lines: “Future acts of Congress shall not be interpreted by reference to foreign or international law unless they expressly reference and incorporate such bodies of law." I believe that such a statute is worthy of serious consideration.

In conclusion, House Resolution 97's nonbinding message to the courts does not violate separation of powers but, rather, reflects a healthy step toward interbranch constitutional dialogue. Moreover, the resolution rightly rejects the troubling notion that our Constitution can be made to evolve at the behest of foreign institutions. My only suggestion is that Congress next study this same issue as it applies in the context of statutory interpretation.

I applaud House Resolution 97, and I thank the Committee for the opportunity to endorse it.

Mr. CHABOT. Thank you very much.
[The prepared statement of Mr. Rosenkranz follows:]

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