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And while we are not condemning in this resolution any specific decision, we have looked not only to the decisions that the justices have issued increasingly in the last 15, 20 years, but also their comments off the bench which are very, very important to understand. The framers of our Constitution never suggested that we should be an island unto ourselves. We have the treaty power. We have the ability of the legislature to look to overseas laws and proposals. We've incorporated much of English and western civilizations common law in our laws. We have provisions, under article I, that Congress can take the power to remedy offenses against the laws of foreign nations. But nowhere in the constitutional text ever does it suggest that we can have courts import foreign laws or foreign constitutional propositions.
Madison basically said in '47 when he quoted Monesque, “Where the powers of judging join with the legislative, the life and liberty of the subject would be exposed to the arbitrary control for the judge who would then be the legislator.” One of the problems we have with importing foreign law that's never been ratified by any of the political branches, the elected branches, is that judges have enormous discretion. There are some 191 recognized countries by the United States State Department, and how is a judge, if this is an appropriate process, to discern which of the countries is appropriate to cite and which of the countries is not, one of the things that some of the witnesses, I think, will address today.
I note that Justice Breyer's speech to the American Society of International Law 97th Annual Meeting, April 4 of 2003, encouraged all of the professors and all of the lawyers and all of the law students to go out and research all of the international law, because he said the Supreme Court was incompetent because of the overwhelming body of constitutional law and statutory law to understand what all of these 191 nations are doing, and I agree with them. They are not competent to do so, but I also would suggest to him that it is inappropriate for them to be encouraging lawyers to come before them and do this.
Finally, citing Justice Breyer in that speech, he ends by talking about what an exciting revolution this is, and I quote him: "What could be more exciting for an academic practitioner or judge than the global legal enterprise that is now upon us? Wordsworth's words written about the French Revolution will, I hope, still ring true.” In quoting, and this is Wordsworth's great poem about the French revolution: "Bliss was it in that dawn to be alive, but to be young was very heaven.”
Well, my recollection about the aftermath in much of the French Revolution is that there was very little liberty as a result and much bloodletting. I'm here to defend the Constitution and liberty.
Thank you, Mr. Chairman.
I would also like to announce that all Members will have five legislative days to submit additional material for the record, and without objection, I will at this time submit for the record a written statement by Congressman Jim Ryun, who has also been a leader in this effort.
[The prepared statement of Mr. Ryun follows:]
PREPARED STATEMENT OF THE HONORABLE JIM RYUN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF KANSAS MR. RYUN. Mr. Chairman, I appreciate your decision to hold this important hearing. The disturbing trend of the Judicial Branch utilizing foreign and international laws in deciding legal cases must come to an end. I firmly hold that this practice is dangerous and undemocratic. I would encourage the Judiciary Committee to report H.Res.568 out of Committee and for the House to pass this important resolution.
In November 2003, I introduced a similar resolution, H. Res. 446, the Constitution Preservation Resolution, calling on the Supreme Court to stop using international law in its decisions. I saw the Supreme Court's increasing reliance on international law as a threat to the oldest democracy in the world and I stepped forward and took the lead on condemning their actions.
I am pleased that my fellow legislators, Congressmen Feeney and Goodlatte, came together in sponsoring this bill which is substantially similar to original legislation and that will effectively communicate to the Judicial Branch that international law has no place in its decisions.
Justice Antonin Scalia has been a leading advocate against this trend. In a dissenting opinion on Thompson v. Oklahoma he denounced
the Court's plurality's reliance on international practice as “totally inappropriate.” He argued, “The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.” However, this is occurring in greater frequency.
In the Lawrence v. Texas anti-sodomy case, the Supreme Court majority relied on a series of decisions by European courts on the same issue. Justice Anthony Kennedy wrote the majority opinion of the court, in which he cites and makes reference to international law four times. Kennedy specifically says that the European Court of Human Rights has rejected the law being debated in Lawrence v. Texas. He goes on to say that since there is no “legitimate or urgent” reason in other countries for this law, the United States has no reason either.
In Akin v. Virginia, the Supreme Court noted that the world community overwhelmingly disapproved of executing the mentally retarded, and therefore found the practice unconstitutional.
In Grutter v.Bollinger, Justices Ruth Bader Ginsburg and Stephen Breyer cited the International Convention on the Elimination of All Forms of Racial Discrimination in their concurring opinion.
In Knight v. Florida, Justice Steven Breyer, in deciding a case focusing on allowable delays of execution, said he found "useful” court decisions on the matter in India, Jamaica and Zimbabwe.
The Court's usage of international law and opinions in decisions is completely incompatible with our democratic values and the proper role of the courts in our constitutional system. The American people have had no opportunity to vote on any of these laws, and, in fact, many international laws are often developed by United Nation bureaucrats, without any democratic input.
International law has no more place in our courts than foreign countries have in our elections. Foreign countries are expressly prohibited from influencing our elections. However, the Supreme Court, in using the laws passed by these countries to interpret and rewrite American laws, are achieving the same result-foreign interference in our government.
The Supreme Court holds an important role in the Government as defined in the Constitution. However, this is not the role it is defining for itself. Judge Robert Bork said, “If the views of foreign nations are relevant, they should be relevant to legislative debates, not in judicial interpretations of the Constitution.” The Courts are overstepping their Constitutional boundaries. This Congress must keep the Court in check and pressure the Court to conform to its Constitutional role to decide cases based on the Constitution, not foreign laws or world opinion.
Mr. CHABOT. I'd now like to recognize the gentleman from Iowa, Mr. King, who is also a cosponsor and leader in this effort.
Mr. KING. Thank you, Mr. Chairman, and I thank you for holding this hearing today, and I'd like particularly to thank Congressman Feeney and Congressman Goodlatte, but in particular Congressman Feeney, who I believe has in the brief time I've been in this room delivered a lot of what needs to be said about this issue. And I would take it back to, and I don't know that it's been quoted specifically in opening remarks to this point, but article VI, and I would go so far as to say that not only should the courts not be considering foreign decisions, but also that the Constitution suggests to the contrary in that in article VI states, and I quote: "This Constitution and the laws of the United States shall be the supreme law of the land, and the judges in every State shall be bound thereby”—and I would emphasize this—"anything in the Constitution or laws of any State to the contrary not withstanding.
I'll argue that our founders did not consider the concept of taking a look at foreign law with the exception of the common law and the references made by Mr. Feeney, and if they had considered a scenario of today, they would have considered also inserting the language “anything in the Constitution or laws of any State or country notwithstanding."
So that's my specific argument, and to me it's just simply unbelievable that a Supreme Court justice would reference Zimbabwe. It violates the whole concept that I come to this with, and that is I'm seeing this activism, and I want to delve into that just a little bit, in that this, I will argue, is step one. The Constitution gives the Congress the authority and the responsibility to establish, and clearly establish, the separation of powers between the Legislative and Judicial Branch of Government, and it really isn't the Court's fault entirely that we are to this point where we have an activist court that's taken over so much authority from the Legislative Branch.
I would argue that a year ago that the line between the separation of powers has been blurred by an activist court from the top all the way down through the system. Today, I'll tell you the line has been obliterated and by a number of different decisions. They have sent this message to this Congress that we will be dealing with whatever they let us deal with, but when I read the Constitution, it establishes that the Court will deal with whatever the Congress lets them deal with, with the exception of those specific responsibilities that are within the Constitution, and we know what they are, and the specific court, the Supreme Court, which is in the Constitution.
So I think we've got a lot of work to do here, and I don't know that we have to do it in a radical fashion. I think we need do it in a step-by-step fashion, this being step one, and to send this resolution to limit the courts to the directions that Mr. Feeney has described here this morning, and I think we need to follow along with that and do a number of other things to brighten this line of the separation of powers.
And another thing that I am concerned about is the activism that's being taught within our law schools today, the young people that believe that it is their job to go out and amend this Constitution by every opportunity of litigation that they have, and that kind of activism in the end tears this Constitution asunder, and the question that we need to get answered is if we are going to go down the path of activism, judicial activism, that sees the future of America in fashion that's not accountable to the voice of the people, like we have to be, if we go down that path, what does the Constitution mean? What value has it? What is left of it that we can rely on, this Constitution that was established for liberty and for freedom and to ensure the rights of the minority as well as the majority?
So that's my concern, and I'll pose this question: What's left of the Constitution if we amend it piece by piece by piece? Is it simply then a document that's gotten us from 1789 to this point where we can be enlightened and move forward and develop our society and race us into the future at the direction of the courts, or is it a Constitution that's established to protect the rights of the minority and protect the timeless individual human rights that are denoted by our founding fathers?
So I see this as a step along the way. Again, I thank all of the people that are principals involved in this resolution and the Chairman.
And, Mr. Chairman, I yield back the balance of my time.
Would the gentleman from Indiana like to make an opening statement?
[Mr. Hostettler gestures in the negative.] Mr. CHABOT. Thank you.
At this time, I'd like to introduce our very distinguished panel here this morning, and our first witness is Jeremy Rabkin, Professor of Government at Cornell University where he teaches courses on international law and American Constitutional history. He received his B.A. from Cornell and his Ph.D. in political science from Harvard.
He has written widely on the emerging strains between American Constitutional principle and the current trends in international law. His book, "The Case for Sovereignty”, will be published by AEI Press this spring, and a longer study, “Law Without Nations, Why Constitutional Government Requires Sovereign States”, will be published by Princeton University Press at the end
of this year.
And we welcome you here this morning.
Our second witness is Professor Vicki Jackson of the Georgetown University Law Center. Professor Jackson is a graduate of Yale and Yale Law School. She has served as a law clerk to U.S. Supreme Court Justice Thurgood Marshall and was a Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice under the Clinton Administration.
She is coauthor with Professor Mark Tushnet of a course book on "Comparative Constitutional Law” and serves as an articles editor for ICON, the International Journal of Constitutional Law.
And we welcome you here this morning, Professor.
Our third witness is Michael Ramsey, professor of law at the University of San Diego School of Law. Professor Ramsey is a graduate of Dartmouth and Stanford University Law School. He has clerked for Justice Scalia of the U.S. Supreme Court and practiced law with Latham & Watkins in San Diego. Professor Ramsey teaches Constitutional law and foreign relations law.
And we welcome you here, Professor.
And our fourth and final witness this morning is John McGinnis, professor of law at Northwestern University. Professor McGinnis earned his B.A. and J.D. from Harvard and his M.A. from Oxford University. He then clerked for Judge Kenneth W. Starr on the U.S. Court of Appeals for the District of Columbia. From 1987 to 1991, Professor McGinnis was Deputy Assistant Attorney General in the Office of Legal Counsel at the Department of Justice.
So, as I said, we have a very distinguished panel here this morning, and we welcome all of you. We'll begin with Professor Rabkin. I might mention that we have, as you're probably aware of, a lighting system. We'd ask that you confine your testimony if possible, to 5 minutes. We'll give you a little leeway, but if you could perhaps do that. The yellow light will come on when there is 1 minute to go, and then when the red light comes on, if you could wrap up at that time, we'd appreciate it.
We'll begin with Professor Rabkin. You'll need to turn the mike on there.
STATEMENT OF JEREMY RABKIN, PROFESSOR OF
GOVERNMENT, CORNELL UNIVERSITY, ITHACA, NY Mr. RABKIN. Thank you.
First I want to congratulate the Committee. I do think this is a very important issue, and I'm very grateful to you for calling attention to this.
Since I'm starting off, I'm going to approach this in the most general way, but I think it's the big picture that's important for us to hold on to. It's certainly true that you can find examples of American court decisions, Supreme Court decisions, citing what foreign jurisdictions have done, but to my knowledge, almost all of the cases like that, if you go back to earlier times, deal actually with international issues, and I think at the heart of this controversy that we're having now is does international any longer correspond to some defined limited body of law which we can say, no, okay, that's the international, and the rest is ours?
The very term "international” was coined, as it happens, in 1789 by Jeremy Bentham, and what he the reason he coined this phrase, he wanted to emphasize we're talking about, as he said, a law that involves the relations between sovereign states and therefore it is international; it is between nations. Once you have U.N. human rights conventions that purport to lay down standards about a whole wide range of things, should we have comparable worth for women workers, should children have the right to receive any kinds of reading materials they like, all kinds of things are now dealt with in U.N. convention, and it no longer corresponds in any way to things that are international.
What we do in the United States, for example, on questions that involve women or feminist issues or, as in the Texas case, sexual freedoms, this has no direct relation to anything that happens in a foreign country. We aren't going to do it differently because they do it differently. We do not need to coordinate. There is no treaty there, or, indeed as Justice Ginsburg mentioned, there is a treaty, but we haven't ratified it. So why can't we just have our own country? And the thing you have to keep in mind is a lot of people are now saying, "Well, since there are treaties, it doesn't matter wheth