Mr. CHABOT. Absolutely. The others Members can respond. Mr. WHELAN. Mr. Hostettler, what you so well described about Justices just making it up and looking for whatever arguments support their conclusions is exactly the case for six Justices on the Supreme Court. They use the label "the living Constitution," and they get all sorts of support from left-wing academics and also the camouflage from the media. But that is exactly what they are up to. There is no benefit of the doubt left to be accorded. We have been seeing it for several decades now. And that is why we need to have Justices who recognize that they themselves are constrained by principles outside them in the manner that they construe the Constitution and other Federal laws. Mr. ROSENKRANZ. I think it is a terrific question. I think the hyper-realist critic of the Court is that the result comes first and that we can always find reasoning for whatever result we prefer. I, like Professor Dinh, like to think that this is a caricature. Perhaps there is some truth to it, but surely it is an exaggeration. And the main constraint on the judiciary is that they have to write down their reasons, and for that reason, we do some good when we rule some rationales off the table. We say, you can write down a number of different kinds of reasons, but reasoning from current international law is illegitimate. We rule that off the table. We make it harder to reach certain results. We constrain judges to appropriate methods of constitutional interpretation. It doesn't make it impossible to do results-oriented judging, but it does make it harder. So I think we move the ball down the field when we engage in this exercise. Ms. CLEVELAND. I would agree with Professor Rosenkranz that the hyper-realist view is, we all hope, a characterization, and there are very real constraints on what decisions judges can reach. They are bound by the text of the Constitution. They are bound by the structure. They are bound by precedent. They are bound by history. They are bound by what society will tolerate. And Justice O'Connor, among other Justices, has observed that the Supreme Court never strays too far to the left or the right of the society in which it is currently operating. None of those constraints would prohibit any particular individual from reaching a particular conclusion, but collectively within the dynamic of the Court, they actually play a very real role, as we all saw as law clerks, in confining the range of movement that the judges have available to them. Mr. HOSTETTLER. Thank you. Mr. CHABOT. The gentleman's time has expired. The gentleman from Virginia, Mr. Scott, is recognized for 5 min utes. Mr. SCOTT. Thank you. Thank you, Mr. Chairman. And I hope the sponsors of the amendment won't be offended if I don't agree with the idea that we ought to rely on the original intent of the Constitution. Insofar as if we kept the original intent, I would only have three-fifths of a vote on this Committee and not a full vote. Mr. HOSTETTLER. Will the gentleman yield on that. Mr. SCOTT. I will yield. Mr. HOSTETTLER. And that is an excellent point in that that was changed by amendment-amending the Constitution. But the notion of obtaining the consensus of the American people outside of an article V process is, I think, not legitimate as far as the Constitution is concerned. And I thank the gentleman for yielding. Mr. SCOTT. Reclaiming my time, let's kind of quick put this in context. If this resolution passes and the chief sponsor of the resolution says, this will prevent judges from ruling in such a way-Professor Cleveland, if this resolution passes, will it have any effect on the judiciary? Ms. CLEVELAND. It won't have any effect on the judiciary in the sense that Mr. SCOTT. Will it have any legal effect? Ms. CLEVELAND. It won't have any legal effect on the Federal judiciary. It could have a chilling effect on what judges have beenare willing to do. Mr. SCOTT. We have been trying to chill the judges, but this won't be doing anything more than anything else we have been doing up here. Let's-if we deny that, will we have phrases like "cruel and unusual"? Who do you think decides what is cruel and unusual without taking a global view on it? Why shouldn't-Professor Cleveland, why shouldn't the courts take into consideration that in putting juveniles to death we are the only ones in the world doing it? Doesn't that kind of inform us as to what is cruel and unusual? Ms. CLEVELAND. If the United States is the only country in the world imposing the punishment, I would submit to you that that is truly unusual. Mr. SCOTT. If we waited for judges-if we waited for legislatures to change the rules rather than letting activist judges change the rules, could Brown v. Board of Education ever have been decided? Could we have eliminated segregated public schools by waiting for the legislative branch and State legislatures to change the results? Ms. CLEVELAND. It would have taken a long time given the limitss on African-Americans voting in southern States and elsewhere. Mr. CHABOT. Will the gentleman yield? That was reversed in bad previous court decisions. Mr. SCOTT. You are absolutely right. Activist judges overturned properly enacted State laws requiring segregated schools. Mr. SCOTT. Since the Committee is so fixated on marriages, let's try Loving v. Virginia. If we had to wait for Virginia to change the law on mixed marriages, would we still be waiting. Professor Cleveland, do you see any evidence that Virginia anywhere along-since the 1960's, would have actually changed the law? Ms. CLEVELAND. Again Mr. SCOTT. I served on the legislature for 15 years. I can tell you there is a lot of stuff that we thank the judicial branch for deciding for us because we never would have gotten around Ms. CLEVELAND. Well, in the same way, in the Lawrence case, the Texas homosexual sodomy statute had not been enforced by the Texas government for years. And, in fact, it had become almost impossible to challenge it because the State of Texas was unwilling to enforce it. But the legislature wouldn't have repealed it. Mr. SCOTT. I guess we just want to keep this in context that whether we pass this or not won't have any effect on the-will have no legal effect on whatever we do. So I will yield back the time. Mr. CHABOT. The gentleman yields back his time. The gentleman from Iowa, Mr. King, is recognized for 5 minutes. Mr. KING. Thank you. Thank you, Mr. Chairman. And I do appreciate the testimony on the part of the witnesses. And so sometimes it is a little hard to keep a little flow of continuity here when we run off to vote, but a number of things in the previous testimony occur to me and one is that a number of you have been clerks for Supreme Court Justices and you have got a sense of how things flow inside those chambers. And so, you know, I am watching more and more cases being decided—or I will say, considered-that reference and cite foreign law. And it seems to me that the incidence of the citing of foreign law is growing significantly and dramatically. And so I start my first question with Mr. Dinh. I understand you clerked for Justice Scalia. And I know that you do a lot of the research and the clerks do a lot of the research. But since this incidence of foreign law is coming up consistently more, is there a reason for that? Are you digging back into foreign law books? Are there people that are staff people that are designated to do this type of research? For me, it wouldn't occur to me to look at Chinese law or United Kingdom law or Somali law or Zimbabwean law as a resource. Who is creative enough to even go look at that law before it is cited? Mr. DINH. Thank you very much for that question, sir. I did not work for Justice Scalia. I clerked for Justice O'Connor. Otherwise, I would not have been looking at foreign law sources. But I think your question is a very good one. The Courts, in the words of Justice Scalia-then Judge Scaliaare not roving boards of inquiry. They are not there in order to find and solve all the problems of the world according to their own life and doing their own research on the Internet or in Zimbabwe or elsewhere, but rather depend upon the research and the arguments presented to them by the lawyers. And I frankly go into the third point of my opening statement. I frankly do not have very much faith-aside from all of the jurisprudential and democratic objections, I do not have very much faith in the ability of domestic judges and lawyers to get foreign law right, because at the end of the day, we are not steeped in those cultural and legal traditions and we end up cherry-picking the ones that support our predelictions. Mr. KING. I did hear that part of your testimony-although I was not attentive when you were introduced, I did not hear that, Mr. Dinh. I apologize. Mr. Whelan, Mr. Dinh has testified that he believes that material comes from the attorneys. Would you speculate as to whether that is fully the case, or do you believe that there is some research that is done from inside the Supreme Court chambers as with regard to foreign law? Are all of these citings, can we index those back to briefs that have been presented to the Court in these particular cases? Mr. WHELAN. Well, I would only be speculating and certainly wouldn't want to speak to anything that I witnessed, though, of course, being a clerk for Justice Scalia, I did not witness any of that. I think what you see now is a dynamic where the Court, six Justices at least, have signaled their strong interest in foreign law as a potential resource. So lawyers, in turn, will be looking to provide those selective foreign legal authorities that support their positions, and Justices who want to cite those materials will do so. And I think you have a downward spiral as a result. Mr. KING. Thank you. And Mr. Rosenkranz. Mr. ROSENKRANZ. I would just add to that that the research into foreign law is an extremely elaborate and time-consuming process, which is another great cost of this trend. So as has been pointed out, these sources are found by lawyers, and it takes them hours of billable time. And the question is, is this a good use of social resources? I think probably not. Mr. KING. I am watching the clock tick down. I would be very interested in Professor Cleveland's answer. And I have something I need to do in the last minute, and that is-this is the foreign travel over the last 6 years of the Justices. And in this notebook here-the bookmark is the Constitution, by the way-is a spread sheet and a chart of the Justices' foreign travel and a list of where they have gone and who has paid for the trips. And then I haven't done a proper analysis to make a presentation before this Committee, but I can point out that in, for example, June of 2000, Justice Kennedy went to China; and in June and July of 2001, Justice Breyer went to China; and in October of 2001, Justice Kennedy went back to China; and in September of 2002, Justice O'Connor went to China; and then in the Roper case in March 1, 2005, all of them cited Chinese law. That is one example. And I think history is replete with this. And so it may not be that-it may be that the research that is presented is presented by attorneys and in the briefs, but it might also be that their respect for this foreign law is cultivated on foreign trips, paid for by foreign entities. And that is the point I hoped to make. I thank you, and I yield back the balance of my time. The gentleman from Florida, the principal sponsor of the bill, along with Congressman Goodlatte, is recognized for 5 minutes. Mr. FEENEY. Thank you, Mr. Chairman. I thank all the witnesses. I think this is a fascinating discussion. I refer to it as a national civics lesson about the appropriate role of judges in our system of Government. And my friend from Virginia suggested that all we could really hope for with the resolution is to chill certain activities from the bench; and I have to admit that that is entirely what some of us intend to do with this. We would like to chill the Justices right out of article I legislative powers and back into article III. We would like to chill the article II, importing treaties; that we refused to sign, like the 37th article, for example, in the Roper case. We would like to chill them into respecting a Republican form of government in article IV. We would like to chill them out of amending the Constitution other than article V. And we would like to chill them back into the Supremacy Clause. So this is entirely designed to chill certain behavior and activity. I have a one-word question and am asking for a one-word answer from each of you so we can get to a couple of things very quick. Dean Koh has referred to the six-member majority, including Justice O'Connor, who intends to retire, as the "transnationalist Justices." and if that is a fair description-and I buy it-of the majority, do we have a term for the three Justices that are remaining fixed on the Constitution without reference to foreign law? And I will give each panelist, you know, a second or two to come up with one. Why don't we start with Mr. Dinh? Mr. DINH. Traditionalist. Mr. WHELAN. Two words, American originalist. Ms. CLEVELAND. Professor Koh uses "nationalist." Mr. FEENEY. One of the things I am very interested in is that Justice Ginsburg, off the bench, has tried to ragsize the use of references to foreign law in interpreting basic constitutional rights among other things. And she refers us to the Declaration, and she talks about how the Founding Fathers started out with a decent respect for the opinions of mankind. But everywhere she gives that talk, she refuses to include the rest of the sentence, which was that because of our respect for the opinions of mankind, we are required to, quote, "declare the causes which impel them," meaning the States and colonies and people, "to separation." So our respect was limited to the notion that we owed people a discussion, an explanation, of exactly why we were separating ourselves from reliance on foreign law. And I think it is really disingenuous of her to continue to repeat that phrase as justification for what she is doing. I want to ask a theoretical question, and I would like the three folks that sort of agree that Feeney-Goodlatte House Resolution 97 is an appropriate message to Federal Justices. Given the fact that in the Atkins decision we overturned American laws given to us by legislators based on, among other things, the Zimbabwe approach to folks with mental disabilities and the death penalty, given the fact that in Lawrence we referred to the European courts human rights attitudes toward sodomy to again overturn not only elected representatives but their own precedent; and of course the Roper decision, where the U.N. Convention on the Rights of Children, which we have not adopted, which was essentially adopted and ratified for us by the Court. Supposing that I were an activist judge who was pro-life, and supposing this approach is appropriate, could I now justify over |