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 embrace 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, including 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. Mr. CHABOT. Yes, indeed. Professor Jackson. STATEMENT OF VICKI JACKSON, PROFESSOR OF LAW, 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 voked the law of nations in Worcestor v. Georgia, which concerned the status of Indian tribes in our Constitutional order. Chief Justice Roger Tawney did so as well in Holmes v. Jennison. The case involved the question whether the State of Vermont had power to extradite a fugitive to Canada. These and other early comfortable references to the law of nations in resolving important legal questions suggest that contemporary uses of foreign or international law as non-binding but relevant authority are well within our own interpretive traditions. This brings me to my second point, which is that recent cases, such as Lawrence, Atkins, or the opinion in Grutter, do not involve use of foreign or international law as binding authority, but as relevant or possibly persuasive authority insofar as it reflects information about how other systems have approached similar problems. Relevant non-binding foreign law and institutions has been referred to on many occasions in our court, both to shed light on how our constitution is distinctive from many others and also to show commonalities between our constitution and the legal commitments of other nations that may help us in determining how best to interpret our own laws. An example of the use of foreign legal matter as negative authority to show how we're distinctive is found in Justice Jackson's great opinion-he's no relation-Justice Jackson's great opinion in the Youngstown Steel case where he explored-he had come back from Nuremberg where he was a prosecutor, and he explained in the opinion how the emergency powers provisions of the Weimar Constitution of Germany helped enable Hitler to come to power. This use of foreign authority as a negative example powerfully illuminated how our constitution should be interpreted in light of what it is and we stand for. In Miranda v. Arizona, the Court used foreign authority both to distinguish us and to shed light on common legal concerns. The Court described practices followed to protect against abusive custodial interrogations in Scotland, England, and India to explore the likely consequences to law enforcement of our adopting what we now know as the Miranda warnings. These other countries, the Court said, did not have the written protections of our fifth amendment, yet the Court saw their rules as efforts to protect similar interests and as shedding light on how our own written constitutional provision of the fifth amendment should be interpreted. Although claims that foreign or international law is binding authority in the U.S. may well raise important questions of democratic legitimacy, the thoughtful consideration of foreign precedents or legal institutions in a non-binding way can be a positive good in helping to assure us that our own constitutional decisions are thoughtfully considered and well informed. Lawrence's use of the European decisions was, in my judgment, appropriate not only to correct assertions that had been made in Bowers v. Hardwick, but also to understand how another respected court in the world had reasoned about a similar problem under similar though not identical legal commitments. Last, I want to urge great caution in any effort to direct Federal courts in how to engage in their interpretive activity. This is at the core of the judicial process. Part of the U.S. constitutional system of separation of powers is the institution of judicial review by independent courts of constitutional questions. Disagreement with their decisions is, on occasion, to be expected, though, thankfully under our rule of law system, disobedience is not. But to seek to interject that disagreement into the interpretive process by directing the Court what materials it may and may not look at or refer to risks the appearance of political interference with one of the signal and great contributions of the United States to constitutionalism here and abroad, and that is the independent judiciary as a bulwark for constitutional liberties, freedoms, and rules. Thank you. [The prepared statement of Professor Jackson follows:] PREPARED STATEMENT OF VICKI C. JACKSON Thank you for the opportunity to provide a statement on proposed House Resolution 568. I want to make three points. First, the "law of nations" and the practices of other constitutional systems have been used since the Founding period to assist the Court in reaching appropriate interpretations of American law. Second, the Court's use of foreign law in Lawrence v. Texas, 123 S. Ct. 2472 (2003), was not to bind or control its judgments of constitutional questions under U.S. law but to assist the Court in making the best interpretations of our own law. Third, legislative directions to the courts on how to interpret the Constitution raise serious separation of powers questions and might be perceived to threaten judicial independence in ways inconsistent with important traditions of American constitutionalism. For these reasons I would urge the House not to adopt the proposed resolution. Far from being hostile to considering foreign countries' views or laws, the Founding generation of our Nation had what the signers of the Declaration of Independence described as a "decent Respect to the Opinions of Mankind." Congress was empowered in our Constitution to regulate foreign commerce and to prescribe "Offenses against the Law of Nations," the President authorized to receive ambassadors, and the federal courts given jurisdiction over cases arising under treaties as well as under the Constitution and laws of the United States, and over suits affecting ambassadors, or involving aliens or foreign countries as parties in some cases. The Federalist Papers explained that An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable. . . that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. The Federalist No. 63 (Hamilton or Madison). Although Federalist No. 63 was not directed to the courts, Federalist No. 80 (Hamilton) explained the need for a judicial power broad enough to resolve disputes in which foreign nations had an interest in order to avoid causes for war. U.S. Supreme Court Justices from the founding period recognized the relevance of the "law of nations" in interpreting U.S. law and resolving disputes before the federal courts. As Justice Story said, in writing the foundational Supreme Court decision in Martin v. Hunter's Lessee, the judicial power of the United States included categories of jurisdiction, such as admiralty, "in the correct adjudication of which foreign nations are deeply interested . . . [and in] which the principles of the law and comity of nations often form an essential inquiry." Martin v. Hunter's Lessee, 14 U.S. (1 Wheat) 304, 335 (1816). The Justices have used understandings of the law and practice of other nations on a number of occasions to assist in reaching correct interpretations of the U.S. Constitution. Thus, for example, in Worcestor v. Georgia, 31 U.S. 515, 560–61 (1832), the Court, in an opinion by Chief Justice John Marshall, considered the law of nations as helpful in defining the status of Indian tribes under the U.S. Constitution, concluding that they retained rights of self-government with which the states could not interfere. In Holmes v. Jennison, 39 U.S. 540, 569-73 (1840), Chief Justice Taney's opinion relied on the practices of other nations to help interpret the Constitution as precluding a state governor from extraditing a fugitive to Canada.1 In other cases, as well, the early Court took cognizance of the "law of nations" or other countries' practices in resolving particular controversies: In The Schooner Exchange v. McFaddon, 11 U.S. 116, 137-46 (1812), the Court relied on "the usages and received obligations of the civilized world" to hold a foreign sovereign's vessel in a U.S. port to be immune from judicial jurisdiction. In Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804), Chief Justice Marshall wrote that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction" exists. And in determining what the law of nations was, in 1815 the Court commented that “[t]he decisions of the Courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect." Thirty Hogsheads of Sugar v. Boyle, 13 U.S. 191, 198 (1815). This brings me to my second point. The Court's recent references to foreign law and legal practice seems to me entirely consistent with the founding generation's respectful interest in other countries' opinions and legal rules. Lawrence did not treat foreign court decisions as binding authority, which is an important distinction. Rather, the foreign decisions were cited in Lawrence for two purposes: The first was to correct or clarify the historical record referred to in Chief Justice Burger's opinion in Bowers v. Hardwick, 478 U.S. 186 (1986), a decision reversed by Lawrence. As the Lawrence Court wrote, "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction," including the Dudgeon case decided by the European Court of Human Rights in 1981. Second, the Lawrence opinion suggested, the European decisions invalidating laws prohibiting adult, consensual homosexual conduct raised the question whether there were different governmental interests in the United States that would support such a prohibition on human freedom, and concluded there were not. See 123 S. Ct. at 2483. This use of foreign law to interrogate and question our own understandings is something that will help improve the process of judicial reasoning, but certainly does not necessarily lead to the conclusion that our law should follow that foreign law. Indeed, on a number of occasions our Court has referred to foreign practice to distinguish our own Constitution from that of other nations. In the great Youngstown Steel Case, the Court held that President Truman lacked constitutional power to order seizure of the steel companies. Justices Frankfurter and Jackson alluded to the dangers of dictatorship that other countries had recently experienced, Justice Jackson explaining in some detail features of the Weimar Constitution in Germany that allowed Hitler to assume dictatorial powers. See Youngstown Sheet & Tube Co v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J.) (“absurd to see a dictator" in President Truman but "accretion of dangerous power does not come in a day"); id. at 651-52 (Jackson, J.) (discussing German, French and British approaches to emergency powers). And in Miranda v. Arizona, 384 U.S. 436, 489-90 (1966) the Court suggested that our Fifth Amendment should be interpreted to provide at least as much protection to rights against improper custodial interrogations as did certain other countries.2 Considering other courts' decisions on shared concepts of liberty, equality, freedom of expression, cruel and unusual punishment can help clarify what the U.S. Constitution stands for-to what extent its precepts are shared, and to what extent they are distinctive. The U.S. constitution has, directly or indirectly, inspired many other nations to include commitments to liberty, freedom and equality in their own constitutions. It is thus understandable that such nations may look to our courts' 1 Although there was no opinion of the divided Court and the writ of error was dismissed for want of jurisdiction, Justices Story, McLean and Wayne concurred "entirely" with the Chief Justice's opinion. 39 U.S. at 561. The Reporter's Note at the end of the case indicates that after the case was disposed of in the Supreme Court, the Vermont state court concluded that, "by a majority of the Court it was held that the power claimed to deliver up George Holmes did not exist" and discharged him. 39 U.S. at 598. 2 After describing the protections of, inter alia, England, Scotland and India, against improper custodial confessions, 384 U.S. at 486-89, the Court indicated that our own situation was similar enough that their positive experience gave "assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them." Id. at 489. It went on to say: "It is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined." Id. at 489-90. |