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 a 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 Chair

man.

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

er the United States has actually ratified them because there is customary international law." And what is customary international law? And if you look at a lot of law review articles, a lot of treatments, this is what those law students are being taught now. Customary international law is not what it used to be, which is what countries actually do in their relations with each other, but just what a lot of countries do. So you can start adding up how many countries say this, and if enough of them do, you can say in some general way that represents the view of the world community. Of course what that means is we no longer have our own Constitution. I make one point in my prepared testimony which I want to elaborate just briefly in the 2 minutes that remain to me. When you say world government, people roll their eyes and say don't be silly; we're not talking about world government. Okay. We're not talking about world government. What are we talking about? We're talking about coordination among judges. We certainly are talking about that. Now, what does that mean? It means that judges in different countries will buck each other up, reassure each other, lend each other moral authority by saying, yes, we all do this; yes, all over, yes; we're the world community.

You don't need to talk about recent disputes between, say, Europe and the United States over Iraq or how to deal with terrorism. You don't need to call them surrender monkeys, but just focus on this for a minute. This model in which you can have judges dialoguing with each other and changing their national laws is something which they find very appealing in Europe because that is what the EU is. It's basically linked-up judges who have established a whole new Constitution on top of the national Constitutions. Only now are they getting around to saying, "Oh, yeah, maybe we should have a treaty that we call a constitutional treaty which has a supremacy clause."

For 30 years-more than that now-40 years, you've had European courts saying, "Oh, the European treaties are of higher authority even than our national constitution," and where did that come from? Not from the treaties. From judges saying, “Oh, yeah, it's true," and then reassuring each other and encouraging each other to say that. That would be a big change for us.

Now I want to come back to the security question, because you could say, "Well, all these countries are interlinked and their judges are dialoguing and so it all goes together and isn't that swell and that's really progress. There's no European army." Why is there no European army? Well, because they don't actually trust each other enough to actually have an army together. There isn't even a European police force.

Our Constitution started with this central issue: Are we going to have a national army and are we going to have the means to fund a national army; are we going to have a national executive? That's the difference between the Articles of Confederation and the Constitution, that the Constitution establishes an executive with force, and when we faced that at the beginning, we said, “Okay, yes, we need this, but of course it's dangerous, so we need to have checks and balances and a constitutional structure.”

What they have done in Europe, and that is really what's at stake here, is they have said we don't need to do that because that

would frighten people. If you said, yes, a European army, yes, a strong European executive with its own police force, everybody would be rattled. So they say you don't need that; you can just sort of sidle around it and just have the judges networking with each other and then establish European law in that way, and so you don't really need a real constitution with checks or balances.

People who think that way think there is no real conflict in the world. So everybody can agree, and it's convenient to think that there is no real conflict in the world because you never need force and you don't really need to defend yourself, because basically we all agree, and so our judges can dialog and work this thing out. One of the things that is crucially at stake here is not just some very abstract point about democracy or constitutionalism, but whether the United States can defend itself in its own institutions, and one of the things that is engaged by this trend, I believe, is our capacity to do it. One of the things that is going to start filtering in here-how do people feel about sodomy? I don't know. I don't think it's a burning issue. How do they feel about capital punishment maybe is a more intense issue, but down the road you're going to have questions about what can we do in our anti-terror efforts. I don't think we want to take construction from European judges who have a very different view of this, because their whole view of terror is it's something that happens to other people and keep it away from us.

I think it's quite important to our security and to our sense of ourselves as a nation entitled to defend itself that we keep in focus here that our constitution is about defending ourselves and as an independent nation and the citizens of this nation, as citizens of a nation which is going to protect it, and that is really at stake here in the background too.

Thank you.

[The prepared statement of Professor Rabkin follows:]

PREPARED STATEMENT OF JEREMY RABKIN

Thank you for inviting me to take part in these hearings. I believe the proposed resolution is an appropriate response to a disturbing trend. I very much hope the committee and ultimately the whole House will give it their full consideration.

Let me start by placing these recent Court rulings in larger context. To date, the U.S. Supreme Court has invoked the legal standards of foreign countries in only a handful of cases-that is, cases dealing with the U.S. Constitution. In all of these cases, references to foreign practice or foreign opinion might fairly be described as incidental to the Court's reasoning. So, it may seem that these references are nothing to get excited about.

But if justices who favor citations to foreign claims are content to mention them in footnotes, other justices have taken the trouble to repudiate such references in the text of their opinions (as, for example, both Chief Justice Rehnquist and Justice Scalia did in Atkins). In all likelihood, the critics recognize that what seems a mere stylistic or ornamental element in recent opinions is not something that is occurring in isolation. In fact, the U.S. Supreme Court is flirting with a trend that has already been taken quite a bit further by other courts in other countries. Robert Bork, who surveys the trend in a recent book, calls it "transnational constitutional common law."

The issue, therefore, is not whether any harm has been done by the handful of recent incidental citations by our Court. It is whether the American judiciary should join this larger trend. I think it is proper to express alarm at the first hint that the U.S. courts would join this trend. In what follows, I will lay out three main objections.

First, reliance on foreign legal opinion will encourage judicial activism. One of the main reasons why judges cite precedents is to demonstrate that their decisions are