APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF AMERICAN LAW

THURSDAY, MARCH 25, 2004

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,
Washington, DC.

The Subcommittee met, pursuant to notice, at 10:04 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot, (Chair of the Subcommittee) presiding.

Mr. CHABOT. The Committee will come to order. I'm Steve Chabot, the Chairman of the Subcommittee on the Constitution. We welcome the panel here this afternoon, and I recognize myself for the purpose of making an opening statement.

Article IV of the Constitution clearly provides that "This Constitution and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land." However, today an alarming new trend is becoming clear: Judges, in interpreting the law, are reaching beyond even their own imaginations to the decisions of foreign institutions to justify their decisions.

This hearing on H. Res. 568 will explore the appropriateness of citations to foreign authorities for the interpretation of American law. H. Res. 568 was introduced by Representatives Feeney and Goodlatte, and it is currently cosponsored by myself, Mr. King, and many other Members of the House Judiciary Committee and some 60 other Members of Congress. It expresses a sense of the House that judicial determinations regarding the meaning of the laws of the United States should not be based on pronouncements of foreign institutions unless such foreign pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States.

In an October 28, 2003 speech, Supreme Court Justice Sandra Day O'Connor stated, "I suspect that over time, the U.S. Supreme Court will rely increasingly on international and foreign courts in examining domestic issues." Justice O'Connor's prediction follows an already disturbing line of precedents in which the U.S. Supreme Court in several recent cases has cited decisions by foreign courts and treaties not ratified by this country to support their interpretations of the United States Constitution.

As one commentator has written, "The use of international sources and cases involving purely domestic concerns is alien to the American legal system historically and, if unchecked, will produce a further erosion of American sovereignty in addition to the mischief already done by these cases." Indeed, the Declaration of Independence itself announced that one of the chief causes of the American Revolution was that King George had "combined to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws."

In Lawrence v. Texas, the recent decision striking down a Texas statute prohibiting same-sex sodomy, Justice Kennedy, writing for a majority, cites for support a decision by the European Court of Human Rights allowing homosexual conduct as evidence of a lack of world consensus on the illegality of such conduct. Whatever one's views on that issue, it should be evident that the relevant consensus behind American law is not a world consensus, but rather the consensus of those in the United States on the meaning of the words used in the Constitution and legislation when originally enacted.

As Justice Scalia stated in his dissent in Lawrence, "The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is meaningless dicta, dangerous dicta, however, since this Court should not impose foreign moods, fads, or fashions on Americans." Two years ago, in the majority opinion in Atkins v. Virginia, Justice Stevens struck down laws allowing the mentally retarded to be sentenced to death on the grounds that "the practice has become truly unusual, and it is fair to say that a national consensus has developed against it." Strikingly, the footnote following that sentence, presumably to support the proposition of a national consensus, cites to the views expressed in the brief filed in the case by the European Union. This was, no doubt, a desperate means of hiding the fact that no such national consensus existed as the laws of 20 of the 38 States allowing capital punishment at the time allowed such executions.

In Grutter v. Bollinger, which upheld the use of racial preferences in university admissions, Justice Ginsburg, in a concurrence joined by Justice Breyer, began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary maintenance of unequal or separate rights for different racial groups. She then cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which, Justice Ginsburg noted in a speech a few weeks later, "Sadly the United States has not ratified." As commentator Stuart Taylor, Jr. has written, "If an international agreement that the United States has refused to ratify can be invoked as a guide to the meaning of the 136-year-old 14th amendment, what will be next? Constitutional interpretation based on the sayings of Chairman Mao? Or Barbra Streisand?”

The citation of foreign judgments in opinions by American judges is far out of the mainstream. Even Drew Days, former U.S. Solicitor General under the Clinton Administration, when asked about

the Supreme Court's citation to a foreign authority in Lawrence, confessed that, "It surprised me to see it in a majority opinion.'

Americans, of course, are not subject to the dictates of one world government, but increasingly Americans are subject to the decisions of the United States Supreme Court that are based, at least in part, on selectively cited decisions drawn by a variety of foreign bodies. Americans' ability to live their lives within clear constitutional boundaries is the foundation of the rule of law and essential to freedom. There is no substitute for the unadulterated expression of the popular will through legislation enacted by duly elected representatives of the American people. The foundation of liberty turns to sand, however, when American must look for guidance not only to duly enacted statutes by elected legislatures and to decisions of American courts faithfully interpreting those statutes, but also to the often contradictory decisions of hundreds of other organizations worldwide.

I look forward to hearing from all the witnesses here this afternoon, and the Ranking Member is not yet here; but, Mr. Schiff, I don't know if you wanted to make an opening statement on behalf of the minority.

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Article VI of the Constitution clearly provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land." However, today an alarming new trend is becoming clear: judges, in interpreting the law, are reaching beyond even their own imaginations to the decisions of foreign institutions to justify their decisions.

This hearing on H. Res. 568 will explore the appropriateness of citations to foreign authorities for the interpretation of American law. H. Res. 568 was introduced by Representatives Feeney and Goodlatte, and it is currently co-sponsored by myself, Mr. King, many other Members of the House Judiciary Committee, and some 60 other Members of Congress. It expresses a sense of the House that judicial determinations regarding the meaning of the laws of the United States should not be based on pronouncements of foreign institutions unless such foreign pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States.

In an October 28, 2003 speech, Supreme Court Justice Sandra Day O'Connor stated-quote-"I suspect that over time [the U.S. Supreme Court] will rely increasingly

on international and foreign courts in examining domestic issues." Justice O'Connor's prediction follows an already disturbing line of precedents in which the U.S. Supreme Court, in several recent cases, has cited decisions by foreign courts and treaties not ratified by this country to support their interpretations of the United States Constitution.

As one commentator has written, the "use of international sources in cases involving purely domestic concerns is alien to the American legal system, historically, and, if unchecked, will produce a further erosion of American sovereignty, in addition to the mischief already done by these cases." Indeed, the Declaration of Independence itself announced that one of the chief causes of the American Revolution was that King George had-quote-“combined to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws."

In Lawrence v. Texas, the recent decision striking down a Texas statute prohibiting same-sex sodomy, Justice Kennedy, writing for a majority, cites for support a decision by the European Court of Human Rights allowing homosexual conduct as evidence of a lack of world consensus on the illegality of such conduct. Whatever one's views on that issue, it should be evident that the relevant consensus behind American law is not a world consensus, but rather the consensus of those in the United States on the meaning of the words used in the Constitution and legislation when originally enacted.

As Justice Scalia stated in his dissent in Lawrence,-quote-"The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is . . . meaningless dicta. Dangerous dicta, however, since this Court . . . should not impose foreign moods, fads, or fashions on Americans."

Two years ago, in the majority opinion in Atkins v. Virginia, Justice Stevens struck down laws allowing the mentally retarded to be sentenced to death, on the grounds that-quote-"[t]he practice... has become truly unusual, and it is fair to say that a national consensus has developed against it." Strikingly, the footnote following that sentence, presumably to support the proposition of a "national consensus," cites to the views expressed in the brief filed in the case by the European Union. This was no doubt a desperate means of hiding the fact that no such “national consensus" existed, as the laws of 20 of the 38 states allowing capital punishment at the time allowed such executions.

In Grutter v. Bollinger, which upheld the use of racial preferences in university admissions, Justice Ginsburg, in a concurrence joined by Justice Breyer, began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary "maintenance of unequal or separate rights for different racial groups.” She then cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which, Justice Ginsburg noted in a speech a few weeks later-quote"sadly, the United States has not ratified." As commentator Stuart Taylor, Jr., has written, "If an international agreement that the United States has refused to ratify can be invoked as a guide to the meaning of the 136-year-old 14th Amendment, what will be next? Constitutional interpretation based on the sayings of Chairman Mao? Or Barbra Streisand?"

The citation of foreign judgments in opinions by American judges is far out of the mainstream. Even Drew Days, former U.S. Solicitor General under the Clinton Administration, when asked about the Supreme Court's citation to a foreign authority in Lawrence, confessed that-quote-"It surprised me to see it in a majority opinion.

Americans, of course, are not subject to the dictates of one world government. But increasingly, Americans are subject to the decisions of a United States Supreme Court that are based, at least in part, on selectively cited decisions drawn from a variety of foreign bodies. Americans' ability to live their lives within clear constitutional boundaries is the foundation of the rule of law, and essential to freedom. There is no substitute for the unadulterated expression of the popular will through legislation enacted by duly elected representatives of the American people. The foundation of liberty turns to sand, however, when Americans must look for guidance-not only to duly enacted statutes by elected legislatures and to decisions of American courts faithfully interpreting those statutes-but also to the often contradictory decisions of hundreds of other organizations worldwide.

I look forward to hearing from all our witnesses today.

Mr. SCHIFF. Mr. Chairman, thank you. I'm just going to make a brief comment that doesn't as much go to the nature of this specific issue, but something as I see it as a trend that concerns me, and that is the deterioration of the relationship between the Congress and the courts. I think we need to work on strengthening the bonds between our two coequal branches of Government, and through a number of actions that the House has taken the last several years, I think we have strained the bonds of comity between the Congress and the courts. And I would hope that when issues like this come up, that there is every opportunity given to receive input from the Judicial Conference, that we in the appropriate way and through the appropriate channels try to ascertain the impact of our decisions on the Judiciary and treat the Judiciary as a coequal branch in recognizing their unique role in our form of Government.

So I would hope that in our discussion of this issue and any other that we will work to facilitate that relationship and not further degrade it. Several of us have been working on establishing a new caucus within the Congress that's designed to improve communication between the Congress and the courts where we antici

pate working closely with the justices, with the courts of appeals, with the State courts to try to improve the quality and the quantity of dialogue between our branches, and I didn't want to let this opportunity go by without raising my concern over the changing nature of the dialogue or lack of dialogue between our branches in the hope that we show an appropriate deference and respect to the Judicial Branch.

And I yield back the balance of my time.
Mr. CHABOT. Thank you very much.

Would the gentleman from Florida who is one of the two principal sponsors of the legislation like to make an opening statement? Mr. FEENEY. Thank you very much, Mr. Chairman.

In addition to Congressman Goodlatte, Congressman Ryun, and Congressman King, I have been very interested in this, as you have, Mr. Chairman. I want to associate myself with the comments of Mr. Schiff. I do believe it's important that we have a great deal of comity between the three branches. I also think it's important to have a dialogue, as he suggested. One of the ways, not the only one way we have dialogues, is through sending resolutions from the Congress, and so I hope we can have an enlightened discussion about this issue.

I would also hope that we recognize the importance of an independent judiciary, but we ought to understand independence of the judiciary in its proper constitutional context. The judiciary should never have been independent of the Constitution or the laws of the United States themselves, because they give the foundation for the legitimacy for the judiciary in the first place.

One of the things I would like to point out, Mr. Chairman, if I could, at the outset is what this resolution doesn't do. This resolution specifically doesn't say the courts can't use foreign laws when interpreting, for example, treaties or understandings between different States. It also basically would never prohibit a court from using the legislative intent for a congressionally-enacted statute. If we look to Germany for its health care laws or France for its education laws, for example, certainly it would be appropriate in divining the intent of the Congress to look into foreign issues that informed the creation of the legislation itself; and, finally, it doesn't prohibit any court from ever looking at foreign laws as long as those laws inform an understanding of the original meaning. What it would do is to suggest, of course, that they could not look at, for example, a recently enacted statute or a recently enacted constitution overseas to interpret a constitutional provision that may be 215 years old, for example.

As the Chairman pointed out, increasingly Federal judges, including six United States Supreme Court justices, have expressed, in my view, disappointment in the original constitutional text that we inherited from our framers. In certain times, they have expressed disdain for laws enacted by democratically elected representatives. With disturbing frequency, they have simply imported new laws from foreign jurisdictions looking for more agreeable laws or judgments in the approximately 191 recognized countries throughout the world. They championed this practice and fancied themselves players on the international scene of juris prudential thought.