turning the precedent established in Roe v. Wade, in part, largely due to the fact that the attitudes through much of the globe do not permit abortion on demand, which is, to some extent, what Roe requires of us? If this approach is legitimate jurisprudence-we start with Mr. Dinh-do you think it would be inappropriate judicial activity for a judge offended by the decision in Roe to look at global attitudes of abortion on demand? Mr. DINH. It is a very big "if," but if the "if" holds, then I agree with you. And, yes, activism works both ways. And once you open up the Pandora's box of illegitimate sources of law, then it does not stop it one way or the other. Mr. WHELAN. I have a two-part answer. First, Roe is wrong no matter what. You don't need to look to foreign law to find arguments for that. All Americans ought to recognize that it is time that the American people be restored their power to determine what abortion policy ought to be in the States. Second, again, though, if you grant your premise, a Justice would recognize that the abortion regime that has been imposed on this country is a regime more radical than that that exists in any virtually any country in the world. We don't need to look to parts of the world where abortion itself is not lawful generally. Even in Europe, as Mary Ann Glendon has pointed out, the laws there are far more moderate than the radical regime we have in this country. Mr. FEENEY. Mr. Rosenkranz. Mr. ROSENKRANZ. Sir, you are quite right. And I believe that it brings us back to Congressman Hostettler's question in which we are left with the distinct impression that the Court is not doing this systematically, but is doing it selectively to achieve the results that they want to achieve. Mr. FEENEY. Professor? Ms. CLEVELAND. In the 1980s, the Reagan administration argued to the Court that the right to choose should be limited based on foreign precedents. And I think that is an argument that is available to attorneys before the Court. Mr. FEENEY. Should Justices use it? I am not asking what lawyers can argue; they ought to argue anything that can win if it is ethical. But should Justices use it? Ms. CLEVELAND. In all of these contexts, the question is part of a much broader package of issues that the Court has to consider regarding the particular constitutional norm that is presented. So in answering that question, I would say that the Court would have to look at what the law that it was confronted with was. What it was-how it was being urged to modify Roe, how significantly that contradicted our established doctrine and precedent; and all of these things would go into the consideration of the decision. Mr. FEENEY. I thank the panelists and yield to the Chairman. Mr. CHABOT. Thank you. The gentleman's time has expired. We are not going to another round, but the gentleman from New York has asked to ask one additional question, and we have granted that right. Mr. NADLER. Thank you. I appreciate the indulgence of the Chair. I just want to ask Mr. Whelan a question. That remark you made just a moment ago raised in my mind—you talk about Roe v. Wade and you say it is it is obvious Roe v. Wade is wrong, all Americans should acknowledge that Roe is wrongly cited and that it was wrong that the American people presumed because their legislatures ought to decide on the legality of abortions in the States. Is that what you said, essentially? Mr. WHELAN. That is essentially correct. Mr. NADLER. My question is the following: Many people think that the real goal of certain legislation such as the what was the bill? I forgot what we call it, the title of the bill to recognize that two separate crimes, an assault on a pregnant woman with a fetus? Mr. CHABOT. Will the gentleman yield? The Unborn Victims of Violence Act? Mr. NADLER. The Unborn Victims of Violence Act, yes. That the real goal of that is to establish the fetus' personhood and that if you establish the fetus' personhood under the 14th amendment, then under the 14th amendment you cannot deprive a person of life, liberty or property without due process of law; and that if we were to establish that a person is a-I'm sorry, that a fetus is a person under the 14th amendment, then if Roe were to be overturned, the rationale might not be that it is simply wrong. In deciding that, therefore, the implication is that State legislatures can do what they want one way or the other, but that a fetus is a person under the 14th amendment. Therefore, you cannot deprive a person of life, liberty or property without due process of law; and therefore, no State legislature nor Congress may permit abortion under any circumstances because that would be a violation of the 14th amendment. Are you saying that you would regard that as wrong reasoning, or you just didn't think of it when you said that getting rid of Roe would enable the States to do what they want? Mr. WHELAN. Well, I certainly follow that. I think the reasoning that you attribute to people is clearly not the correct reasoning. I don't think those who support the Laci Peterson bill are interested in some grand concoction of what the word "person" means in the 14th amendment, nor do I think that anything this Congress does statutorily to protect unborn human beings-beings that are, after all, members of the species Homo sapiens from the moment of conception-would have any impact on the word "person" in the 14th amendment. I have testified as to my position that unborn human beings are not persons within the meaning of the 14th amendment. And, you know, the so-called "conservative" approach to the abortion issue, those who oppose Roe, recognize merely that the issue ought to be restored to the people to decide. I think, frankly, with all respect, the rest is scare-mongering. me. Thank you very much. Mr. CHABOT. The gentleman yields back. In follow-up to the gentleman's point, if I could make one point, I think many people believe that all the acrimony that has gone on for years relative to the abortion debate, much of it could have been avoided had it not been the Supreme Court that acted on its own. If this had occurred because the elected representatives of the people made this decision one way or the other thing, then I think Mr. NADLER. Different States. Mr. CHABOT. it would have been much less acrimonious, and people would not have felt that the decision was just handed down and forced upon us, and that the people had no real input on such an important decision in this country. So I think that the Supreme Court-and I obviously think Roe was wrong and would like to see it overturned; I have never made any secret of that I am strongly pro-life, but nonetheless, I think that decision was most unfortunate, not because of so many lives that The gentleman from Iowa is recognized. I was starting to ramble there anyway, so perhaps Mr. King got me off the hook. The gentleman from Iowa. Mr. KING. I thank the Chairman. I will try not to belabor this point. I appreciate the privilege of making a quick point. It is a question of curiosity, that I would very much like to present to Professor Cleveland particularly, because I didn't get to you. But it is not the same question, and it is a point that I think is a central point here that has not been made. And that is, the Constitution is a contract that was ratified by the several States in roughly 1789 when most of the consensusand that contract is a clearly defined document that says, we have an agreement amongst the States, and every State that enters the Union signs on to that contract. It is an irrevocable contract; and that was resolved by the Civil War when Lincoln took that stand. And yet today, we have come so far away from the text of the Constitution that I would defy any modern-day legal scholar, let alone some future historian-archaeologist to try to divine the Constitution by reading through whatever mass of case law is out there. It seems to me to be impossible, even for a strict constructionist court, to work their way back to the Constitution given this mass of case law that we have out here. What is the meaning of the Constitution now, today? Has it just been a transitional document that got us to this point in history where the judges now run society? Is it an artifact of history, Professor Cleveland? Ms. CLEVELAND. I think that is a bigger question than can be answered right here. But I think it is important to recognize that the Constitution is very sparsely drafted. It uses some very general language, deliberately, because it was intended to survive through the centuries. So the cruel and unusual punishments clause, you know, we were talking about the Roper case. The Court is trying to figure out how you decide what is "cruel" and what is "unusual." One way you decide what is "unusual" is to look at what is an uncommon punishment. I don't think that their decision in Roper strayed significantly from that text at all. I think it was quite honest to it. "Due process," similarly, is a concept that is general; it changes over time with conceptions of right and wrong. And the drafters of the Constitution deliberately wrote a document that would have the flexibility to tolerate change in human existence. Mr. KING. Let's take an easy one. Let's talk about Kelo where they struck the word "for public use" from the fifth amendment. That one should be an easy one for us to get some consensus on. Would you agree that that was a sharp amendment to the Constitution that took place with impunity by the Supreme Court? Ms. CLEVELAND. I haven't read the case. I would prefer not to comment on it. Mr. KING. Thank you. Mr. CHABOT. We will make this the last response if we can, Mr. King. We won't be having a second or third round here. Mr. WHELAN. Kelo is a great example of how the left on the Court ignores rights that are in the Constitution and makes up rights that aren't. Mr. KING. Thank you, Mr. Chairman, and thank you minority party. I yield back. Mr. CHABOT. We want to thank all the Members for being here today. We want to thank especially our panel for their excellent testimony in helping us to consider this very important issue. So if there is no further business to come before the Committee, we are adjourned. Thank you. [Whereupon, at 6:20 p.m., the Subcommittee was adjourned.] APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD PREPARED STATEMENT OF THE HONORABLE TOM FEENEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Six U.S. Supreme Court Justices-approvingly described as "transationalists" by Yale Law Dean Harold Koh-have increasingly expressed disappointment in the Constitution we inherited from the Framers and disdain for certain laws enacted by democratically elected representatives. With disturbing frequency, these Justices have simply imported law from foreign jurisdictions, looking for more agreeable laws or judgments in the approximately 191 recognized countries in the world. They champion this practice and fancy themselves participants in some international scene of jurisprudential thought. In recent speeches, several Justices have referred to the "globalization of human rights" and assumed a "comparative analysis" when interpreting our constitution. Mr. Goodlatte, I, and others on this Committee hope to start a great civics debate on the constitutionally appropriate role of judges in this Republic. This is why we asked Chairman Chabot to conduct hearings on this subject. If Americans believe that the laws of another nation are superior to ours, they bring that idea to the attention of their elected representatives and move that policy through the legislative process. But if foreign laws are imposed on Americans by five unelected Justices, then rule by "philosopher kings" has replaced rule by "We the People." And we will have forgotten a reason for our nation's birth. For in the Declaration of Independence's list of grievances against King George III, is: "He has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws." Despite our country's fierce protection of its sovereignty for over 200 years, judges at the highest levels of the federal judiciary cannot resist rationalizing otherwise baseless interpretations of American law by reference and incorporation of international law. The latest example is Roper v. Simmons, where the Supreme Court used foreign law to determine whether the death penalty for a 17 year old murderer violated the Eighth Amendment. Justice Kennedy's majority opinion included an extended discussion of the relevance of foreign law to interpreting the Eighth Amendment. Not limiting himself to international law, Justice Kennedy went further to cite international political opinion opposing the death penalty. Never mind that back in America, a majority of states with the death penalty subject 17 year old murderers to it. Or in my home state of Florida, 70% of our voters favored a state constitutional amendment to permit such an application of this penalty. To support overturning decades of precedent, the Supreme Court found it necessary to cite the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child. Yet it ignored that the United States has specifically reserved the question of the execution of juveniles in signing and ratifying the former and has not ratified the latter. I've reintroduced the Reaffirmation of American Independence Resolution to again stress the sense of the House that international influence should be removed from judicial interpretation of our Constitution. This resolution states: That it is the sense of the House of Representatives that judicial interpretations regarding the meaning of the Constitution of the United States 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 of the United States. Despite their high rhetoric, transnationalists are results-oriented judges who cherry pick through foreign law and precedent to find reasons to overturn the democrat |