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This is what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with basic principles of democratic self-governance reflected both in the Declaration of Independence and the Constitution itself. The issue is thus a very important one, and all the more important today with a Supreme Court nomination pending. The Committee is to be commended for addressing it here.

II.

Separation of Powers and Interbranch Constitutional Dialogue

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The Resolution focuses expressly on "judicial" interpretations. At a hearing before this committee last year concerning a similar Resolution, 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 of Representatives" that judicial interpretations of the Constitution generally “should not" be based on foreign law. Because the Resolution does not purport to bind the judiciary, it cannot be objected to on separation-of-powers grounds.

Indeed, it should be applauded on these grounds. Each branch of government has an independent obligation to consider carefully the proper method for interpreting the United States Constitution. And it is entirely proper and commendable for one branch to inform another of its views on this topic. (One possible criticism of the Resolution as drafted is that it is limited to judicial interpretations; each branch of government is responsible for constitutional interpretation, and none of them should base its interpretation on foreign law.) This interbranch constitutional dialogue is eminently healthy for our system of separation of powers. If anything, I would urge Congress to let its opinions be known on such questions more often.

III. The Use of Foreign Sources in the Interpretation of Non-
Constitutional Federal Law

Finally, it is worthy of note that 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, and it may be worth considering whether this is appropriate and when. Professor Dinh's testimony contends that foreign judgments are peculiarly

13 McCulloch v. Maryland, 17 U.S. 316, 424 (1819).

14 Appropriate Role of Foreign Judgments in the Interpretation of American Law: Hearing on II. Res. 568 Before the Subcomm. on the Constitution of the II. Judiciary Comm., 108th Cong. 18 (2004); See also id. at 18 ("Efforts by the political branches to prescribe what precedents and authorities can and cannot be considered by the Court in interpreting the Constitution in cases properly before it would be inconsistent with our separation of powers system.").

15 See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2088 n.7 (2002).

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relevant to the interpretation of treaties, and I generally agree with him. A different question is whether such judgments may be relevant to the interpretation of federal statutes. Some statutes are passed precisely to execute non-self-executing treaties,1 and the text of such statutes often track the treaties verbatim. In such cases, just as a foreign judgment may be relevant to interpret the treaty, it may likewise be relevant to interpret the implementing statute.

On the other hand, courts rely on international law to interpret federal statutes much more often than that. Indeed, international law is used to interpret federal statutes far more often than foreign law is used to interpret the Constitution. The primary reason for this is the famous Charming Betsy canon, which provides: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. "17 According to one scholar, "the interpretive role of international law, as reflected in the Charming Betsy canon, is arguably more important than its substantive role .... [C]ourts regularly rely on the Charming Betsy canon in interpreting domestic law "18

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One of the primary rationales for the canon is that it reflects congressional intent that Congress is extremely unlikely to wish to violate international law.' This was certainly a sound assumption in 1804, and it was probably a sound assumption for most of our nation's history. But one might ask whether this is still a sound assumption in light of "the radical changes in customary international law after World War II." Customary international law now "can arise much more quickly,' and it is also "less tied to state practice and consent.' And perhaps the most “radical development in the whole history of international law"23-customary international law "increasingly regulates the ways in which nations treat their own citizens."24

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Congress may wish to consider whether it still wishes to legislate against the background rule of the Charming Betsy canon, in light of this radical metamorphosis in customary international law.25 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.

16

Cf. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867 (2005).

17 Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

18 Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GLO. L.J. 479, 482-83 (1998).

19 See, e.g., RESTATEMENT (THIRD) OF THE Foreign Relations LAW OF THE UNITED STATES § 115, cmt. a ("[i]t is generally assumed that Congress does not intend to repudiate an international obligation of the United States by nullifying a rule of international law or an international agreement as domestic law.") Bradley, supra note 18, at 512.

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21 Id.

22 Id.

23 John J. Humphrey, The Revolution in the International Law of Human Rights, 4 HUM. RTS. 205, 208 (1975).

24 Bradley, supra note 18, at 512.

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See id. at 518-19 (offering "empirical evidence suggesting that compliance with intemational law is often not the political branches' paramount concern").

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Indeed, while mandatory congressional instructions to federal courts regarding constitutional interpretation may raise separation-of-powers concerns, mandatory congressional instructions regarding statutory interpretation generally do not.27 Thus Congress could, in fact, go further if it wished and require the federal courts to abandon the Charming Betsy canon. A simple statute to this effect might read as follows: "Acts of Congress shall only be interpreted by reference to foreign or international law if they expressly reference and incorporate such bodies of law." I believe that such a statute is worthy of serious consideration.

Conclusion

In conclusion, the Resolution rightly endorses a jurisprudence of "original meaning” and rejects the troubling notion that our Constitution can be made to “evolve” at the behest of foreign institutions. Its precatory framing as a "Sense of the House of Representatives" about how the judiciary “should” approach constitutional analysis does not violate separation of powers principles, but rather reflects a healthy step toward interbranch constitutional dialogue. My only suggestion is that Congress next address 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.

26

See
supra notes 14-15.

22 See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002).

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

TESTIMONY OF SARAH CLEVELAND, PROFESSOR,

UNIVERSITY OF TEXAS SCHOOL OF LAW

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.

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.

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.

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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