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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.
[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
not simply based on their own personal preferences but follow, in some way, from recognized legal standards. If foreign rulings are relevant guides to the law, then judges have a much larger range of precedents to choose from or to hide behind.
The point is well illustrated by the two recent cases in which the Supreme Court's majority did invoke foreign standards-Atkins v. Virginia and Lawrence v. Texas. In both of these cases, the Court was reversing decisions it had made only some fifteen years earlier.
The Court was therefore at pains to explain why the Constitution had meant one thing in the 1980s and now should mean something else.
Foreign opinion was invoked to give more respectability to the Court's change of heart-or rather, to the shifting balance of votes among the justices (divided now on the issues in these cases, as they were in the 1980s, but with a majority on the other side).
If contrary foreign rulings provide justification for changing American law, then American judges may find many pretexts for abandoning existing precedents and launching in new directions. And the choice will almost always be up to the judges, since foreign courts and foreign standards reflect wide variation. The Court remains free to adopt European views on capital punishment for murderers of subnormal intelligence-as in Atkins. Evidently, it does not feel bound, however, to mbrace the European view that the death penalty is always improper.
Similarly, there is no indication that the Court is prepared to consider European stances on abortion, which are generally more restrictive than the standards which the U.S. Supreme Court has asserted. The Court seems to regard foreign precedents as something to invoke or ignore, at its own convenience. So instead of limiting the Court, the practice allows the Court to be more free-wheeling. That seems to me bad in itself for an institution whose authority depends on its claim to be discerning law and not merely imposing its own choices.
Of course, there is often dispute about what the Constitution really does mean and how it should be interpreted. It may be that some past rulings of the Court should be reconsidered. But this brings me to my second point. Appeals to foreign practice tend to undermine the notion that we really do (or really should) have a distinct constitution in our own country. Appeals to foreign practice imply that the ultimate issue is simply what the wisest heads regard as the best solution. What we have actually agreed to accept in this country then begins to seem a matter of minor or merely transitory importance.
I am not making a simple-minded appeal to democracy. Courts are not democratic institutions. And it is only in a very figurative sense that our Constitution can be described as “the will of the people," since the people who actually ratified the Constitution, the Bill of Rights and the Fourteenth Amendment have long ago passed on to their rewards. Still, our federal judges are chosen by a political process—in recent years, a very partisan political process—which does answer to our own voters. We implicitly appeal to our citizens to put up with court rulings they find objectionable in the interest of maintaining a common constitutional framework. It is a big leap beyond this understanding to ask Americans to put up with a ruling because it is what foreigners happen to approve.
I think such appeals are bound to undermine respect for law in this country. European courts cite each other. An entire structure of supranational law has been constructed on top of national constitutions in Europe-all by the aggressive application of treaties, which judges in national governments have embraced in part because it gives them more authority in facing their own national parliaments. It may be that Europeans are more comfortable deferring to the guidance of elites, includ. ing foreign elites. Apart from Britain, almost all European countries are governed by constitutions which were cobbled together after 1945 or after still more recent periods of dictatorship. Perhaps Europeans prefer foreign supervision to the tyrannies they fell prey to when they were sovereign. But it would be an enormous change for Americans to live by the promptings of foreign authorities. We are less likely to come away with the belief that we have acquired a better, more cosmopolitan constitution, than with the cynical suspicion that we have been left with no constitution at all.
If all this seems rather abstract, let me conclude with a more immediate political point. Resort to foreign precedents may not be disciplined by any sort of clear theory or strict doctrine--as it surely is not now. But it is not likely to be random. Our judges will not invoke precedents from China or Russia or Saudi Arabia. What we are most likely to get is what we have recently gotten-appeals to the sensibilities of western European judges or officials. We share many notions with European legal systems and for just this reason, drawing instruction or inspiration from European courts may seem plausible.
But we also have fundamental differences and some of our most fundamental differences center on the importance of self-defense. American courts have generally been very deferential to the President and Congress when it comes to basic questions about military operations. Our Supreme Court refused in 1980 to question the propriety of an all-male draft. The European Court of Justice directed the Federal Republic of Germany that limits on the participation of women in the German military were contrary to European norms. Our courts have been very reticent about challenging our military's restrictions on the participation of homosexuals. The European Court of Human Rights instructed Britain that it must admit homosexuals to its armed forces. Our courts have been broadly deferential to executive decisions regarding the entry into our country of non-citizens. European courts have insisted that claims about national security cannot excuse interference with the rights of would-be migrants or refugees. Our courts, in general, are far more respectful of legal claims that engage issues of national security. In Europe, judges seem to have far less patience with such claims. The European Court of Human Rights has repeatedly condemned British police practices aimed at suppressing terrorism in Northern Ireland.
We already have major disputes with European states about the best way of coping with the menace of international terrorism. Perhaps we will find more common ground in the coming years. But the very worst way of seeking that common ground, I think, would be for judges—who have no direct responsibility for security and generally very little experience with security issues—to take up European notions from here and from there and grope toward their own vision of common standards.
Should bin Laden or other organizers of the September 11 atrocities be subject to capital punishment? Should they be exposed to fatal attack by American military forces? European opinion holds against such responses. We cannot expect Europeans to participate in military operations of which they disapprove. We cannot expect them to adopt criminal justice measures of which they disapprove. But it may be quite important to the security of the United States in coming years that it retains the moral self-confidence to pursue its own, differing policies and priorities. The Supreme Court in Atkins seemed to acknowledge that European opinion had some claim to be considered in deciding whether American law could impose capital punishment. It is only a short step from Atkins to the notion that European opinion must be considered when our courts decide on the legality or constitutionality of American responses to the challenge of terrorism.
I don't think the American people would accept a scheme in which responsibility for American security were shared with foreign judges or foreign officials—subject only to the shifting sympathies of American judges. I support H. Res. 568 as a means of emphasizing this point to the Supreme Court.
Mr. CHABOT. Thank you, Professor. I might note that this is the first time that, at least in this Committee, the term "surrender monkey” has actually been used. It will be in the record. So at least there's been one first.
Mr. RABKIN. It does capture something.
STATEMENT OF VICKI JACKSON, PROFESSOR OF LAW,
GEORGETOWN LAW CENTER, WASHINGTON, DC Ms. JACKSON. Thank you, Mr. Chairman.
I want to make three points briefly to explain my opposition to the proposed resolution. First, the reliance on foreign or international law that we have seen in the recent cases is, in my view, consistent with our earliest legal traditions. Our Declaration of Independence was written, its drafters said, out of a decent respect to the opinions of mankind and, like many parts of the Federalist Papers, suggest that the views of the rest of the world should matter.
Early 19th Century Supreme Court decisions made repeated use of the law of nations in deciding questions of U.S. law, including constitutional law. For example, Chief Justice John Marshall in