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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.
[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 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' decisions and over time expect our courts to be aware of their courts' interpretations of legal concepts having a common source of inspiration. For the many nations around the world whose own constitutions have been inspired in part by that of the United States, and whose judges believe that we share commitments to ideas of liberty, freedom and equality, the U.S. Court's occasional consideration of foreign court decisions is, in a sense, a recognition of common judicial commitments-often inspired by the example of the United States—to the protection of individual rights. And on the current Court, Chief Justice Rehnquist, as well as Justices Breyer, 4 Ginsburg,5 Kennedy,6 Scalia? and Stevens, have referred to or noted foreign or international legal sources in their opinions in U.S. constitutional cases. It is thus not only a traditional legal practice but one that has been used by justices who otherwise have very different views.
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.
Finally, the questions of what sources are to be considered in giving meaning to the Constitution in adjudication is one that is, in my view, committed by the Constitution to the judicial department. Marbury v. Madison famously explained: “It is emphatically the province and duty of the judicial department to say what the law is.” 5 U.S. 137, 177 (1803). A core aspect of determining what the law of the Constitution is requires consultation of relevant and illuminating materials—from the enactment and ratification history, from interpretations by state and federal courts of the provision or of analogous state constitutional provisions, from the course of decisions by legislatures and executive officials about what action is required or permitted, and from the considered judgments of other courts and commentators on the same or analogous questions. All of these kinds of sources have been and may be considered when the justices conclude that they shed legal light on the problem before them.
Efforts by the political branches to prescribe what precedents and authorities can and cannot be considered by the Court in interpreting the Constitution in cases properly before it would be inconsistent with our separation of powers system. It could be seen both here and elsewhere as an attack on the independence of the courts in performing their core adjudicatory activities. Around the world, the most widely emulated institution established by the U.S. Constitution has been the provision for independent courts to engage in judicial review of the constitutionality of the acts of other branches and levels of government. Congress should be loath even to attempt to intrude on this judicial function, with respect to a practice that dates back to the founding, and at a time when the United States is deeply engaged in promoting democratic constitutionalism in countries around the world, including provision for independent courts to provide enforcement of constitutional guarantees.
Mr. CHABOT. Thank you, Professor.
UNIVERSITY OF SAN DIEGO LAW SCHOOL, SAN DIEGO, CA
Mr. RAMSEY. Mr. Chairman and Members of the Committee, thank you for the opportunity to express my views on the matter. In my written statement, I've explained in detail why I think H. Res. 568 is an appropriate response to some Supreme Court decisions and academic commentary, and I will make a brief summary here.
3 See Planned Parenthood v. Casey, 505 US 833, 945 n. 1 (1992) (Rehnquist, C.J. dissenting) (describing German and Canadian constitutional cases on abortion). But cf. Atkins v. Virginia, 536 U.S. 304, 324–35 (2002) (Rehnquist, C.J., dissenting).
4 See, e.g., Foster v. Florida, 537 U.S. 990, 991-93 (2002) (Breyer, J., dissenting from denial of certiorari).
5 See Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003) (Ginsburg, J., concurring) (referring to international covenants that provide for temporary measures of affirmative action).
6 See Lawrence, 123 S. Ct. at 2481, 2483 (discussing European Court of Human Rights cases invalidating laws prohibiting adult homosexual conduct).
7 See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 381–82 (1995) (Scalia, J., dissenting) (referring to Australia, Britain and Canadian prohibitions on anonymous campaigning as bearing on whether such a prohibition protects or enhances democratic elections). But cf. Printz v. United States, 521 U.S. 898, 921 n. 11 (1997) (Scalia, J.)
8 See Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002) (referring to views of the "world community" on imposition of the death penalty on the mentally retarded as reflected in an amicus brief of the European Union).
No one seriously disputes that reference to foreign materials is entirely appropriate under certain circumstances. When foreign courts have previously interpreted the same legal texts that a U.S. court is considering, of course it is informative, though not dispositive to see what other courts have said on the matter. For example, Justice Scalia recently argued that the Supreme Court in interpreting a provision of the Warsaw Convention on air carrier liability should consider what foreign courts have said about that same provision of the Warsaw Convention. Further, foreign materials are, of course, important in understanding the content of customary international law when U.S. courts are called upon to apply it and may provide background to understand the context in which U.S. laws were enacted.
The new use of foreign materials being proposed, and to some extent adopted by the Supreme Court in a few recent decisions, however, is entirely different. For example, in Lawrence v. Texas, the recent case striking down Texas' anti-sodomy law, the Court relied in part on Dudgeon v. United Kingdom and related cases of the European Court of Human Rights, but these two courts were interpreting entirely distinct legal texts. The Supreme Court was interpreting the due process clause of the 14th amendment adopted in 1868 in the United States. The European court was interpreting the European Convention for the protection of human rights and fundamental freedoms, a treaty among European countries adopted in 1953.
More over, as the Court in Dudgeon made clear, the language in the two documents and the interpretation the courts have placed upon that language is totally different. Under the due process clause, according to the Court's prior precedent, the question was whether anti-sodomy laws had a rational basis, essentially whether they're a reasonable exercise of the state's police power. Under the European Convention, the question is whether anti-sodomy laws were “necessary to protect public health and morals," which the European court explicitly said meant “a pressing social need” and not merely “reasonable.”
In sum, what the European court said about the text of the European Convention was not informative about the meaning of the text of the 14th amendment because those are two totally different legal texts.
As Dungeon and Lawrence illustrate, and contrary to the statements of at least one Supreme Court justice, Justice Breyer, there is no "global legal enterprise in constitutional law.” That's because there is no single global constitution which the world's courts are collectively engaged in interpreting as they are, in contrast, to the case of the Warsaw Convention. There are only a series of distinct legal texts with different language adopted in different places, times, and contexts. Sometimes these may have some relationship to one another, but often they do not.
When U.S. courts look to foreign materials in the way the Supreme Court did in Lawrence, they are not using foreign materials to aid in the interpretation of a specific legal text, but instead are looking to foreign statements of moral and social policy to inform their own thinking about moral and social policy. Further, no one is seriously proposing that U.S. courts should in all cases or even