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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. 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.

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

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supra notes 1415. 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:]

PREPARED STATEMENT OF SARAH H. CLEVELAND

Testimony of Sarah H. Cleveland
H. Res. 97 and the Appropriate Role of Foreign Judgments in the

Interpretation of American Law
House Judiciary Subcommittee on the Constitution

July 19, 2005

Thank you for inviting me to address your subcommittee regarding proposed House Resolution 97 and the role of international and foreign judgments in constitutional interpretation. At the outset, I should note that the views I express are my own as a scholar of international law and the constitutional law of foreign relations, and do not reflect the views of either the University of Texas School of Law or Columbia Law School, where I am visiting for the 200506 academic year.

Proposed House Resolution 97 is contrary to over 200 years of American constitutional tradition. Throughout our nation's history, members of the federal judiciary routinely have considered international and foreign sources of law in the adjudication of constitutional questions.' The judges who have employed this practice include the most illustrious jurists this country has known, including Chief Justice John Marshall, Chief Justice Taney, Justices Story, Field, John Marshall Harlan, Cardozo, Sutherland, Jackson, and Frankfurter, and Chief Justice Earl Warren At least seven members of the current Supreme Court have embraced the use of foreign authorities in their writings on and off the bench, including Chief Justice Rehnquist, who wrote in 1989 that he supported having U.S. courts look to the decisions of other constitutional courts to aid in their own deliberative process."

International and foreign sources of law have been employed for a variety of purposes, in a wide range of constitutional contexts. It is common, for example, for jurists to explain a domestic rule by distinguishing it from foreign practice or to use foreign or international examples for empirical purposes to test the likely results of a particular constitutional hypothesis, as Justice Scalia did in Lawrence v. Texus. Even these uses of foreign authority in delineating constitutional meaning, however, may be contrary to House Resolution 97.

The Supreme Court also has recognized that our constitutional design and traditions invite consideration of international and foreign authorities a variety of ways.

In its strongest form, the Constitution expressly commands consideration of international rules, in the authorization in Article I, Section 8 for Congress to define and punish offenses against the law of nations. The Court has construed that clause in light of international law to uphold Congress' establishment of military tribunals and laws regarding piracy and counterfeiting, among others.

Other constitutional provisions refer to concepts of international law such as "war" or "treaties." Such provisions appear to invite consideration of international rules, and the Court has

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'My testimony is based in pan on my fonhcoming article “Our International Constitution" in the Yale Journal of International Law.

William H. Rehnquist, Constitutional Courts - Comparative Remarks (1989), reprinted in GERMANY ANI) TIS BASK Law: PAST, PRESENT AND FUTURE: - A GERMA-AMERICAN SYMPOSIUM 411,412 (Paul Kirchof & Donald P. Kommers eds., 1993).

539 U.S. 558, 604 (2003) (Scalia, J., dissenting) (pointing to Canadian practice); see also Printz v. United States, 521 U.S. 898, 977 (Breyer, J., dissenting). * E.g., Ex parte Quirin, 317 U.S. 1, 28 (1942); Application of Yamashita, 327 U.S. 1, 7 (1946).

United States v. Smith, 18 U.S. (5 Wheat.) 153, 157 (1820). * U.S. v. Arjona, 120 U.S. 479, 487 (1887).

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interpreted them in light of international rules and foreign practice to promote comity and respect for U.S. relations with other nations. Constitutional war powers decisions accordingly have drawn heavily from contemporary international law norms. As early as the War of 1812, Chief Justice Marshall opined with respect to the Declare War clause that “[i]n expounding (the) constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere.

The Supreme Court also has looked to international and foreign sources to address structural questions in relations between the states. In the first year law school classic Pennoyer v. Nefj, for example, the Court analogized to international rules governing the territorial jurisdiction of sovereign nations to conclude that Fourteenth Amendment due process barred state courts from exercising jurisdiction over out of state defendants. The Court has employed a similar approach in cases involving the Full Faith and Credit Clause and state powers of taxation."

In numerous cases involving the government's power to regulate immigration," to govern Indian tribes,"? to acquire and govern new territories' to exercise the power of eminent domain's and to borrow money, 's the Court has interpreted the powers of Congress to be consistent with sovereign powers enjoyed by other foreign governments. Accordingly, in Fong Yue Ting v. United Stutes, the Court upheld Congress power to expel Chinese immigrants based on powers over aliens recognized under 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 that international rules regarding basic human rights and shared common societal values are an appropriate sounding board for the scope and meaning of constitutional norms. This practice long predated the decisions in Lawrence v. Texas and Roper v. Simmons, and recognizes, as did the Declaration of Independence, that our constitutional tradition incorporates principles of common “inalienable rights." Thus, general concepts of individual rights such as “liberty" and "cruel and unusual punishments” that the drafters incorporated into the Constitution reasonably invoke the shared fundamental values of the global community.

In the context of Fifth and Fourteenth Amendment due process, the Court has looked to shared community values to determine what provisions in the Bill of Rights are sufficiently fundamental to “principles of ordered liberty" to warrant incorporation against the states or to otherwise prohibit government intrusion. Over a century quo, Hurtado v. Californiu"? expressly recognized the relevance of foreign practices to this constitutional inquiry:

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The constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of the English law and history; but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and of

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E.g., The Prize Cases, 67 U.S. (2 Black) 635,666 (1863); Ex Parte Quirin, 317 U.S. 1, 27-28 (1942); Application of
Yamashita 327 U.S. 1, 12 (1946).

Brown v. United States, 12 U.S. (8 Cranch) 110, 124 (1814).
Pennoyer v. Neff, 95 U.S. 714, 722 (1877).
Haddock v. Haddock, 201 U.S. 562 (1906); Pullmans Palace Car Co. v. Pennsylvania, 141 U.S. 18 (1891).
Chae Chan Ping v. United States 130 U.S. 581, 603-606 (1889).

United States v. Kagama, 118 U.S. 375, 380-82 (1886); Tee-Hit-Ton Indians v. United States, 348 US. 272, 279-80 (1955)

Jones v. United States, 137 U.S. 202, 212–13 (1890); Dorr v. United States, 195 U.S. 138, 140, 142, 146 (1904). Kohl v. United States, 91 U.S. 367, 371 (1875). Julliard v. Greenman, 110 U.S. 421,447 (1884). 149 U.S. 698, 706-711 (1893). 110 U.S. 516 (1884) (murder prosecution by information did not violate due process).

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