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In the Declaration of Independence, Jefferson and the Founders explained the rationale for war against and separation from Britain. Among other things, they alleged that the King had combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws.
Yet it appears that is exactly what is happening to the extent that we have Supreme Court Justices relying on contemporary fads, following polls, laws, et cetera, in order to somehow reinterpret the United States Constitution. The most recent alarming decision was in Roper v. Simmons. Again, the United States Supreme Court undermined its own precedent. This is not something that they were looking as comparative analysis or thought that it would be interesting to make note.
You know, I would say to my friend from New York that indeed they did rely at least in part on foreign laws to change their own precedent with respect to whether or not people under the age of 18 can ever be subject to the death penalty in America.
Never mind that a majority of the States that have the death penalty, elected legislatures by the people, allow a 17-year-old murderer under certain circumstances to be put to death. In Florida, over 70 percent of the people have amended our Constitution to allow for the egregious circumstances for people under the age of 18.
So with one fell swoop, based in part on foreign law, we have the United States Supreme Court or a majority anyway—throwing out constitutional referendum in Florida and throwing out the laws of a significant portion of our States.
They did the same thing in Adkins, overturning their own precedent-democratically elected policymakers' decisions.
They did the same thing in Lawrence v. Texas on the issue of whether or not the State of Texas had the right to regulate sodomy.
By the way I won't necessarily quarrel with the outcome of any of their decisions. It's exactly the fact that they relied on international laws, fads, institutions, constitutions, et cetera.
It is important to read what the Feeney-Goodlatte resolution does. I would say to Professor Cleveland, we certainly welcome your comments. I am glad that you are here today because this is an interesting case. I was surprised, when I found and read your testimony, that I agree with a great deal of what you have to say. Indeed, it's often appropriate to cite what is going on in other countries.
In interpreting our Constitution, for example, it would be hard to understand the administration of powers if you hadn't referred to Montague, who Madison says is essentially the founder of the concept of separation of powers. Our Founders were terribly familiar with everybody from Plato, Cicero, Lock, Mill, Blackstone, for a definition of the words “law of nations." one of the problems we have here today is people are confusing the term “law of nations," which is in article I of the Constitution, with international law. These are very different things.
I would refer you to Mr. Blackstone's description of what the law of nations are. It is actually something that doesn't change over time; God-given rights like Jefferson referred to in our Declaration. International law changes a great deal. It does not prohibit, by the way, anytime there is legislative history involved in citing foreign authorities.
If we decide to adopt the German pension system, for example, we debate the German pension system, we want to adopt a Social Security system designed on Bismarck's system which, in fact, to some extent happened-it may be terribly important for the courts to look at the history in Germany of the pension system that Congress adopted.
The legislative history is always appropriate. Treaty, maritime law, all mentioned in the Constitution, are always appropriate for the courts to recognize.
What Feeney-Goodlatte prohibits is overturning constitutional precedent, is creating or finding new constitutional rights or privileges based on contemporary post-constitutional law.
With that, I think that there is no more important question to ask the nominee that we expect at any time now, and all future nominees in terms of their jurisprudential approach. It seems to me that it is appropriate for nominees to comment on this. After all, we have Judge Scalia, Judge Breyer, Judge Ginsburg, and Judge O'Connor at a minimum, not only in their opinions, but off the bench, debating the legitimate use of international law to determine our own constitutional rights.
I will end, Mr. Chairman, by suggesting that when courts do what I have suggested they have done in the three cases I have cited, they in my view violate article I, article II, article III, article IV, article V and article VI. Perhaps we will get into that. I can't find anything in article VII that the judges are violating with respect to their oath when they engage in this procedure. And I yield back to the Chairman.
Mr. CHABOT. Thank you very much. We have a very distinguished panel with us here this afternoon. We are anxious to get to them. I would like to introduce them at this time.
Our first witness will be Mr. Viet Dinh. Mr. Dinh currently is a professor of law at Georgetown University Law Center and founder and principal of Bancroft Associates. His credentials are too numerous to list, but I will note that he previously served as U.S. Assistant Attorney General for Legal Policy from 2001 to 2003, served as Special Counsel to the U.S. Senate Whitewater Committee, and as Special Counsel to Senator Pete Domenici for the impeachment trial of the President. He was a law clerk to both Judge Lawrence H. Silberman of the U.S. Court of Appeals and to U.S. Supreme Court Justice Sandra Day O'Connor. It is very nice to see you again, Professor.
Our second witness is Mr. Edward Whelan, and Mr. Whelan is the President of the Ethics and Public Policy Center, where he directs the Center's program on the Constitution, the Courts and the Culture. Prior to joining EPPC, Mr. Whelan worked at the Department of Justice where he served as the Principal Deputy Assistant Attorney General for the Office of Legal Counsel, starting the position right before September 11th. Mr. Whelan previously served as General Counsel to the U.S. Senate Committee on the Judiciary. He is a former law clerk to both Judge J. Clifford Wallace on the U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme Court Justice Antonin Scalia. We welcome you here this afternoon.
Our third witness is Nick Rosenkranz, who also worked in the Department of Justice's Office of Legal Counsel, serving as an Attorney-Advisor. Prior to joining the Department of Justice, Mr. Rosenkranz served as a law clerk for both Judge Frank Easterbrook on the U.S. Court of Appeals for the Seventh Circuit and for U.S. Supreme Court Justice Anthony M. Kennedy. We welcome you here this afternoon, Mr. Rosenkranz.
Our fourth and final witness is Sarah Cleveland, Marrs McLean Professor in Law at the University of Texas School of Law. Ms. Cleveland is a former Rhodes Scholar and a law clerk to U.S. Supreme Court Justice Harry Blackmun. Her interests include international human and international labor rights, foreign affairs and the Constitution, and Federal civil procedure. She is the author of many publications, including “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of Plenary Power in Foreign Affairs," Texas Law Review, 2002. We thank you very much for being here this afternoon, Ms. Cleveland.
For those who have not testified before this Committee before, let me explain very briefly our lighting system. We have what is called the 5-minute rule. You basically have 5 minutes to testify. Everyone, including Members up here, are limited to 5 minutes.
We have the system there, the green light will be on for 4 minutes, the yellow light, we hope it wasn't working in the
last hearing we had a few hours ago, we hope it is working now. The yellow light is supposed come on for 1 minute. And then the red light, we would ask you to wrap up as close as possible when that light come on. We will give you a little leeway but we would ask you to keep as close to that as possible.
It is the practice of this Committee to swear in all the witnesses appearing before it. So if you would all please rise at this time and raise your right hand.
Mr. CHABOT. Thank you very much. All witnesses have answered in the affirmative.
We will begin with you this afternoon, Professor Dinh. You have 5 minutes.
TESTIMONY OF VIET D. DINH, PROFESSOR,
GEORGETOWN UNIVERSITY LAW CENTER Mr. DINH. Thank you very much, Mr. Chairman, and Members of the Committee. Thank you for the opportunity to be here again to talk about this important topic raised by House Resolution 97: When, if ever, is it appropriate for American courts to consult foreign courts of law in an interpretation of purely American law, particularly the United States Constitution?
Let me start, as Mr. Feeney did, by listing the various areas in which, in my opinion, consideration of foreign sources of law would not only be appropriate but I think essential in the decisionmaking process of U.S. courts.
First, obviously, where the case turns on the meaning of a foreign law. For example, in the case 2 years ago of J.P. Morgan v. Traffic Stream. Second where the case turns on the actions and wishes of foreign tribunals. For example, again, on the same term, the case of Hoffman-LaRoche v. Empagran. Third, where the case turns on the existence of meaning of the law of nations. Again, from the same term, Sosa v. Alvarez-Machain. And also when a court is interpreting a treaty, it is natural to look to the interpretation of that treaty by the courts of nations, who are also signatories to that treaty. Olympic Airways v. Husain, also in the same term, to which I return.
Where foreign sources of law is not relevant and appropriate, however, is in the interpretation of the United States Constitution. There are several reasons for this. The Chairman and Mr. Feeney have gone through them in length. I just want to summarize here my testimony.
First is the obvious fact that foreign courts are not interpreting the United States Constitution. How foreign courts interpret, for example, the European Convention on Human Rights tell us very little what a different document, that is our U.S. Constitution, means. It may well be, as many Justices have observed, that foreign judges often look to the United States Supreme Court precedent in interpreting constitutions and treaties, modeled after the United States Constitution. This is perfectly legitimate and normal; just as U.S. judges do and should look to the foreign antecedents to the U.S. Constitution to discern its meaning. But there is very little reason why the meaning of the U.S. Constitution should be informed by the views, the post-constitutional views, of contemporary foreign judges interpreting their own laws and constitution.
Second is democratic legitimacy. It is okay to consider foreign interpretations of a common treaty, say the Warsaw Convention, not only because the courts are interpreting the same document. Rather, it is also okay because the democratic process has said that it is, implicitly or explicitly. Congress, in ratifying a treaty, has the opportunity to decide whether or not to involve the Federal judiciary at all by making a treaty self-executing or not. Even where Congress has given a role to judges in interpreting and enforcing a treaty by making it self-executing, Congress can specify the terms of such judicial involvement through reservation and other statutory language. In fact, the preamble to some treaties, again such as the Warsaw Convention, expressly recognize that intent and purpose to provide uniform legal principles or a uniform manner of interpretation.
By contrast, in cases of purely American law, there are no corresponding democratic authorization of nor legislative checks on the reliance on foreign judgments. There is simply no way that I or any other citizen, or you as elected representatives of us, can affect how a foreign court would view a U.S. Constitutional issue.
Thirdly and finally, there is simply a matter of consistent methodology. The reason why I bring up the Warsaw Convention and the case of Olympic Airways v. Husain so often in this brief statement is the fact that nobody doubts that consideration of foreign judgments in that context is legitimate. Yet a majority of the Supreme Court in deciding the matter neglected to even cite the fact that two other signatory nations have interpreted the exact same convention, deciding the exact same issue in a diametrically opposed way from which the Supreme Court had come to its conclusion.
In dissent, Justice Scalia threw up his hands and said, here I have been saying for the last 3 or 4 years we shouldn't consider foreign laws in illegitimate instances. In the one instance where it is legitimate, you can probably ignore the relevant judgment of foreign courts.
The reason for this, I think one of the explanations for this, is that we as American lawyers, and especially as American judges, are just not very good at doing foreign laws. We are not steeped in their tradition, we do not know the interpretation. We do not know the entire body of law of a particular nation or of a particular organization or of a particular convention. So what is left is that we would cherry-pick those sources of law which would tend to support our point of view, whether it be in a brief or in a particular opinion.
In the short run, that may ostensibly add to some ethereal legitimacy to or persuasiveness to that particular opinion or brief, but I would contend that in the long run and not very long either, but just a little bit of reflection would indicate the underlying illegitimacy and lack of reliability of such reliance.
I will close there and take any further questions. Thank you very much.
Mr. CHABOT. We appreciate it, Professor.
PREPARED STATEMENT OF VIET D. DINH
Thank you very much for this opportunity to comment on House Resolution 97 and the very important constitutional issues raised by the consideration and application of foreign judgments to the interpretation of United States law, and particularly upon interpretation of the United States Constitution.
The issue raised by today's hearing is indeed an important one: when, if ever, U.S. courts should consider or rely upon the decisions of foreign courts in the interpretation of American law. The issue is particularly important at this time, as in recent years it appears our courts are more often referring to foreign laws and foreign court decisions to justify the conclusion reached in a particular case. American courts often refer to foreign law even in cases involving interpretation of a purely domestic law. Thus, unfortunately, it appears our courts, most noticeably the Supreme Court, are looking to foreign decisions and legal principles in the wrong instances.
The consideration of foreign court decisions is not always improper or inappropriate. Where the law to be construed is a treaty, the interpretations given that treaty by other nations that are parties to the agreement are certainly relevant; our courts should consider these precedents in formulating their own interpretations of the same legal provision. Where, however, the law being interpreted is solely domestic, American law, and particularly where the interpretation is of a constitutional provision, decisions by foreign tribunals on a seemingly similar issue have no relevance. The foreign forum was not tasked with interpreting and applying U.S. law, but rather has the responsibility for applying its own laws.
Despite what I conclude is a clear and necessary distinction between when the consideration of foreign judgments is appropriate, many Justices of the Supreme Court have made it clear that the trend of considering foreign judgments is not coming to an end, but rather is expanding. It is for that reason that I believe this is such an important topic.
When the court is called upon to interpret a treaty or agreement among nations, the court must “accord the judgments of our sister signatories 'considerable weight.'” Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)). For example, in applying provisions of the Warsaw Convention, the Supreme Court has, in many instances, carefully considered the case law of parties to that treaty. See, e.g., El Al