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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 Şix 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 democratically expressed views of their fellow citizens. As Judge Posner has noted, this unrestricted citation of non-United States law "would mean that any judge wanting a supporting citation has only to troll deeply enough in the world's Corpus Juris to find it."

In a telling irony, a consistent application of such jurisprudence would result in strict limitations on abortion and free speech-anathemas to most if not all transnationalists. Should America rely on national laws of say Ireland in determining whether there is a constitutional right to abortion? Or follow the lead of Zimbabwe where journalists must be licensed by the government?

Ultimately, transnationalists fundamentally misunderstand their country's origins. The American people founded and then repeatedly defended this sovereign republic to ensure that they and not some outside entity-be it King George III, the European Court of Human Rights, or the United Nations-controlled their destiny. Yes, we borrowed from other nations' legal traditions, especially the Anglo-Saxon rule of law. But we always did so through the democratic process found in our Constitution. Other countries are free to pursue their notions of “justice.” That's why so many of our ancestors fled those lands to come here.

The Řeaffirmation of American Independence Resolution simply confirms that tradition and our nation's sovereignty.

PREPARED STATEMENT OF THE HONORABLE BOB GOODLATTE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA Mr. Chairman, thank you for holding this important hearing.

As you know, recently there has been a deeply disturbing trend in American jurisprudence. The Supreme Court, the highest court in the land, has begun to look abroad to international law instead of our own Constitution as the basis for its decisions.

Supreme Court Justice Sandra Day O'Connor made a troubling prediction last fall that the Supreme Court will rely “increasingly on international and foreign courts in examining domestic issues ...," as opposed to our Constitution, as the basis for its rulings.

Several western nations have begun to rely upon international conventions and U.N. treaties when interpreting their own constitutions, which is a frightening prospect, given that most of these materials are crafted by bureaucrats and non-governmental organizations with virtually no democratic input. The new Supreme Court trend to cite these types of foreign authorities is a threat to both our nation's sovereignty and the democratic underpinnings of our system of government. Our nation's founders were well aware of this danger when they drafted the Declaration of Independence, which declares that King George had "combined to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws.”

The Supreme Court's trend is particularly troubling because it comes at a time when the Court is deciding such fundamental issues as the very wording of the Pledge of Allegiance, the meaning of the First Amendment, and other issues that are uniquely American. Our nation's judges, and Supreme Court justices, took an oath to defend and uphold the U.S. Constitution-and it is time that Congress remind these unelected officials of their sworn duties.

That is why I joined with my friend and colleague, Congressman Tom Feeney, to introduce the Feeney/Goodlatte resolution, which expresses the sense of Congress that the Supreme Court should not cite foreign authorities when interpreting the U.S. Constitution.

This resolution sends a clear message that the Congress is not willing to simply stand idly by and see our nation's sovereignty weakened.

I believe the judicial branch is guaranteed a very high level of independence when it operates within the boundaries of the U.S. Constitution. However, when judges and justices begin to operate outside of those boundaries, Congress must respond. We must be steadfast guardians of the freedoms that protected in the Constitution of the United States of America.

Thank you again, Mr. Chairman, for holding this important hearing.

PREPARED STATEMENT OF PUBLIC CITIZEN'S GLOBAL TRADE WATCH

Public
Citizen

Buyers.p. Congress Watch • Critical Mass Global Trade Watch Health Research Group Lingution Group

Joan Claybrook, President

Testimony of Public Citizen's Global Trade Watch

For Hearing on the Appropriate Role of
Foreign Judgments in the Interpretation of U.S. Law

For the House Judiciary Committee's Subcommittee on the Constitution

July 19, 2005

The introduction of H. Res. 97 by Rep. Tom Feeney (R-FL) and dozens of co-sponsors has focused needed attention on the impact of judgments, laws, or pronouncements of foreign institutions on U.S. law and policy. Often ignored in this debate, however, is the impact of international trade agreements and tribunals on U.S. laws and regulations, which are arguably already having a greater impact on the United States. This short brief summarizes some of the main implications that international trade agreements and tribunals have for U.S. sovereignty, focusing on the Central America Free Trade Agreement (CAFTA) now being debated by the House. For more information on CAFTA, or on the implications of other trade agreements for U.S. sovereignty, do not hesitate to contact Public Citizen's Global Trade Watch at www.tradewatch.org.

CAFTA & Sovereignty

1. Supporters of CAFTA, including the Office of the U.S. Trade Representative (USTR), say the agreement merely creates a level playing field for U.S. businesses by granting U.S. exports the same duty-free treatment now enjoyed by CAFTA imports to the United States under the Caribbean Basin Initiative (CBI), arguing that the agreement also protects the federal system of shared power.

• If CAFTA only created a level playing field for U.S. businesses by granting U.S. exports the same duty-free

treatment granted to CAFTA nation's imports under the CBI, CAFTA would be a one-sentence pact: “tariff treatment for United States and Central American goods shall be on a reciprocal basis,” plus a few pages of

tariff schedule adjustments. • Instead, CAFTA contains 1,000 pages of international law imposing:

a) obligations about how foreign service sector firms operating within U.S. territory may be regulated (Ch. II), b) property rights not set forth in the U.S. Constitution that would affect U.S. land-use policy (Ch. 10), C) structures on how our federal and state tax dollars may be spent (Ch. 9).

CAFTA puts Members of Congress interested in reducing tariff barriers in the unacceptable position of having to choose between U.S. sovereignty and "free trade."

2. CAFTA explicitly requires the United States Executive Branch and Govemors and Congress, state legislatures and local authorities to conform all existing and future federal, state and local laws to over 1,000 pages of CAFTA-established international law that goes far beyond trade matters (such as cutting tariffs and removing quotas) and extends far beyond ensuring laws are nondiscriminatory (i.e. obligations to treat domestic and foreign goods alike). CAFTA contains numerous absolute requirements that express policies countries may or may not maintain regardless if they treat domestic and foreign players alike. And, CAFTA threatens our system of federalism by requiring that Congress and the federal Executive Branch impose CAFTA's obligations

on states:

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