the death penalty may take into account Europe's view-but that decision should be taken by legislatures, not courts.

For these reasons, I think it is important for courts to limit their use of foreign materials to situations in which the foreign materials are clearly related to interpretive questions of a particular text. When courts use foreign materials to support freewheeling explorations into moral and social policy, they exceed the judicial role.

Mr. CHABOT. Thank you, Professor.

And our final witness this morning will be Professor McGinnis.

STATEMENT OF JOHN OLDHAM MCGINNIS, PROFESSOR, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, CHICAGO, IL Mr. MCGINNIS. Thank you very much, Mr. Chairman. I'm very grateful to be here today on I think a very important issue. I'd just like to make a few points to emphasize and to perhaps disagree with certain points that have been made.

First of all, I think it is very much that this Committee and this Congress has complete authority to pass a resolution offering its own opinion on how the Constitution should be interpreted. I think, in fact, the Congress should do more of that. The Congress has an independent authority to interpret the Constitution for the courts. Of course, the Congress cannot prescribe or change the way a court is going act, but that doesn't mean that it's not valuable for the Congress to offer its own opinion on how the Constitution should be interpreted. Indeed, it's more-they have done so in the past on things like the Pledge of Allegiance case, but it's more important in something like this, a cross-cutting issue across constitutional law that raises questions about the first principles of our republic. So I think there is no doubt the Congress has authority to do this.

Secondly, I think there's also no doubt that this is a serious problem that the courts are using and are thinking of using more often in the future a foreign and international law as perhaps outcome determinative precedent in U.S. constitutional cases, and I think one can cite the speech that the Chairman cited. In fact, I would refer to Justice O'Connor's speech and quote this language: After discussing the Atkins case in Lawrence v. Texas, she said about those cases in ruling that consensual activity in one's home is constitutionally protected. The Supreme Court relied upon, in part, on a series of precedents from the European court, and I suspect that we're going to do so more in the future, relying on the rich resources available in the decisions of foreign courts.

The term "relied upon" I think suggests that these kind of precedents can be outcome determinative. If they are mere decoration in opinions, then I think the Court wants to be very careful and clear about that these are not going to influence the actual outcome; otherwise, I think the Court's decisions become less transparent to the public.

The question of why we should not use contemporary foreign law to interpret the Constitution I think relates in part to the proper way of interpreting the Constitution. The Constitution should be interpreted according to its original understanding. It would be very rare that contemporary foreign law could be relevant to that inquiry of what is the original understanding, and therefore I would distinguish the uses of international law in the 19th Century. Often international law at that time, when it grew up right

around the time of the Constitution, could be useful to understand the meaning of the Constitution.

Moreover, I think the use of the international or foreign law in the Federalist Papers really proves the point here. After all, the Federalist Papers were advocates for the Constitution. They were really acting to persuade the ratifiers to ratify the Constitution. Surely, it would be completely appropriate for Members of Congress to refer to international decisions if they ask their colleagues to pass a statute. That's quite a different use of foreign law than to use it in the course of interpretation of the Constitution.

I just add three final points that I'd like to emphasize about why I think there are risks, really quite pragmatic risks, about using our foreign law to interpret our constitution. One that's been discussed previously is the additional discretion it gives to Supreme Court justices. They can pick and choose the kinds of decisions that they would like to support their case, and that is problematic.

But there are two other things that I think have not really been focused on that I think are equally problematic with using foreign law. One is the idea that foreign law may seem like an American law, but is really very different, and that's exemplified by Lawrence. As Professor Rubenfeld of Yale University has pointed out, European human rights law really proceeds on a whole different theory from American law. It really proceeds on a natural law theory, something that is going to be imposed quite on the people, whereas our own human rights have really been actually produced by the people in the deliberative process of ratifying the Constitution; and our system also has a lot more emphasis on federalism, a lot more emphasis on decentralization and competition in human rights law and, again, not the kind of centralized imposition, typical of Europe.

And, therefore, it can be quite misleading to try to transplant the European decision into the American context, because we have a whole set of different institutions for creating norms. I'm not at all suggesting that the European system isn't good for them, but it's not necessarily good for us. It's a mistake to look this tip of the iceberg of a whole complex structure of government and then translate it over into our law.

The final point is that ultimately too much reliance on foreign law has the potential to alienate our citizens from their own constitution. It's "we the people" who have constituted our constitution, and that's more than a formal point. Our citizens' affection for their own constitution is one of the things that keeps our republic stable. In the 19th Century, that affection was expressed, actually, through parades in the street in favor of our constitution. That may be a little harder to get in an age of C-Span, to get people to parade in favor of their constitution, but that affection for their constitution is still crucial to maintaining the stability and their interest in the Constitution.

There's a risk of citing these foreign cases and relying on these foreign cases. That might seem very chic to the cognoscenti, but that cosmopolitan style comes with a price. It comes with a price of alienating the affections of the citizens on whom constitutional government ultimately depends.

Thank you very much, Mr. Chairman.

[The prepared statement of Professor McGinnis follows:]

PREPARED STATEMENT OF JOHN O. MCGINNIS

Thank you, Mr. Chairman, for inviting me to participate in this hearing on the important subject of the federal judiciary's use of foreign or international law to interpret the Constitution and other laws.

First, I want to make clear that this House has the authority to offer its own opinion on the relevance of foreign or international law to constitutional interpretation, or for that matter, any other contested subject of constitutional interpretation. Congress's duty to share its independent interpretation of the Constitution flows directly from a system of separated powers, designed in part to ensure that each branch has the opportunity to correct the mistakes and excesses of the others. There is no area in which such a self-correcting mechanism should be given freer play than in the interpretation of a constitutional republic's fundamental document. As James Wilson, Framer of the Constitution, Justice of the Supreme Court, and first law professor of the republic, stated, "[t]here is not in the whole science of politicks a more solid or a more important maxim than this-that of all governments, those are the best, which, by the natural effect of their constitutions, are frequently renewed or drawn back to their first principles."1 By holding a hearing on whether it is appropriate to use contemporary foreign law as a source of authority in constitutional law, this Committee is directly contributing to conserving the first principles of republican government.

This hearing, however, is not prompted simply by the academic question of the relevance of foreign and international law to constitutional interpretation. In the recent case of Lawrence v. Texas,2 the Supreme Court held that the due process clause protected a substantive right to sodomy and relied upon a case from the European Union as persuasive authority for that result.3 After citing the case, Justice Anthony Kennedy, writing for the majority, pressed the European analogy:

The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.4

Thus, the question I want to address is whether the Court should use foreign or international law as persuasive authority in interpreting our own Constitution. I believe that subject to certain caveats the Court should not use foreign law or international law and that its use in Lawrence is exemplary of all that is wrong with such an approach to constitutional interpretation. I should note that this question is entirely separate from the question of whether Lawrence was rightly decided and certainly separate from whether laws against sodomy are wise. I, for my part, think such laws are unwise and should be repealed.

One straightforward argument that rules out most use of foreign law in constitutional interpretation is that in almost all cases it is inconsistent with the correct way of interpreting the constitution-interpreting the Constitution according to its original meaning. Obviously, I cannot provide a complete defense of originalism here, but two important factors powerfully favor its soundness as a method of constitutional interpretation. The first argument for originalism derives from the reasons that justify giving a provision of the Constitution priority over a statute when the two conflict. A constitutional provision has a greater presumption of beneficence than a statute because it commanded broader social consensus, having had to pass supermajoritarian hurdles to be enacted.5 But that beneficence depends on the meaning that the ratifiers of the constitutional provision attached to it. It was this meaning that commanded the widespread consensus that permits it to trump statutes passed by contemporary majorities. Therefore only by employing the original

1 See 1 THE WORKS OF JAMES WILSON 291 (Robert Green McCloskey, ed., 1967). 2123 S.Ct. 2742 (2003).

3 The case was Dudgeon v. United Kingdom, 35 Eur. Ct. H.R. (series A) 1981. Some have argued that this citation was simply a response to the claim in Bowers v. Hardwick that homosexual conduct has never been tolerated in Western civilization. Neither the majority opinion in Bowers nor Chief Justice Burger's concurrence, however, made any such claim. In any event, the best interpretation of the language quoted is that the Court is citing this as persuasive precedent for its own holding.

4123 S. Ct. at 2483.

5 John O. McGinnis & Michael Rappaport, Our Supermajoritarian Constitution, 80 TEX. L. REV. 703, 791 (2002).

meaning of a constitutional provisions are judges justified in invalidating statutes enacted by democratic majorities.

The other primary argument for originalism focuses on the institutional competence of the judiciary. It parallels the argument for democracy itself. Originalism is the worst system of interpretation except for all the others. While sometimes it is difficult to discern the original meaning of the constitution because of the passage of time, at least the inquiry into historical meaning requires judges to engage in disciplined search for objective evidence and to consider the purposes of others rather than their own. As such, originalism constitutes a break on judicial wilfulness and subjectivity-tendencies that deprive the judiciary of the comparative advantage they hold over other political actors in constitutional interpretation and therefore undermine the justification for the judiciary's power to invalidate statutes through judicial review.

Moreover, originalism is the default rule we apply to interpreting any historical document. If a historian wanted to understand the meaning of the Mayflower Compact, for instance, he would obviously consult sources available to those who wrote the document in 1620 rather than contemporary sources. However, if we abandon this common default rule of interpretation, there are scores of current interpretative theories from which to choose and many others that surely will be advanced by scholars yet unborn. Originalism is thus the only theory that provides a solution to the coordination problem of constitutional interpretation. If our Constitution is a common bond, we need a common way of understanding it and that common understanding can only be provided by the default rule of interpretation that we generally apply to historic documents.

For similar reasons, statutes are to be interpreted according to the meaning a reasonable observer would have attached at time of their passage. The broad acceptance of this theory of interpretation of statutes in fact provides further support for originalism in constitutional law. I am sure members of this committee who labor long and hard over the details of statutes would want them interpreted as its members would have reasonably understood them at the time of enactment. Why should we have a different theory of interpretation for statutes than for the Constitution? Mere age cannot be distinction because many statutes are almost as old as the original constitution and a good deal older than the more recent constitutional amendments. Moreover, the passage of time does not the erase the meaning of historic documents anymore than it erases the meaning of the documents we write in our own lives.

Accordingly, I entirely applaud the premise of the resolution that is subject of this hearing. Orginalism which calls for ascertaining the meaning that a reasonable observer would have to attached to a law at the time of its enactment is the correct theory of the constitutional and statutory interpretation. If orginalism is the right interpretative theory of the Constitution, there will be little occasion to use contemporary foreign precedent as persuasive authority because contemporary foreign precedent would not generally cast light on what a reasonable person at the time of ratifying the Constitution would have understood to be its meaning. Precedent from the United Kingdom or elsewhere known at the time of the Framing could have been relevant because some provisions of the Constitution might be have been understood in terms of such precedent. But the use of such precedent to establish the Constitution's historic meaning is not the issue here.

Within an originalist theory of interpretation there are two other possible proper uses of foreign and international precedent. Resort to contemporary foreign or international law might be proper if the original Constitution calls for reference to contemporary foreign or international law. The Constitution may do this in limited circumstances as when it permits Congress to "define offenses against the law of nations."6 Even here it is significant that Congress is the body called upon to mediate the relation of international law to law in the United States-not the courts. Similarly, of course, interpreting treaties which are contracts among nations may require attention to foreign and international precedent as a matter or course. Once again under the constitutional provisions for treaty making the political actors rather the courts are choosing to bring international law into our domestic regime.

Finally, foreign law could be relevant to prove a fact about the world which is relevant to the law. For instance, it might be useful to evaluate an assertion that one consequence follows from another, because one could show that in some legal systems the consequence does not always. follow.

I would thus modify the resolution to make clear that these uses of foreign or international law are legitimate. But none of these possible legitimate uses of foreign law detract from the main thrust of this resolution which is designed to pre

6 U.S. CONST. Art 1, sec. 8.

vent the use of contemporary foreign or international precedent as persuasive authority as matter of course in our interpreting our domestic constitution. I would also modify the resolution to address questions of the use of foreign and international law only in the context of constitutional interpretation, because contemporary foreign and international law may well serve as a backdrop to statutes, such as those relating to international trade, and thus be often relevant to their interpretation. While the resolution by its terms does not rule out such use, I think it would be better served to focus on what may be a growing problem of abuse of foreign law in constitutional interpretation rather than statutory interpretation where the problem seems to be less acute.

Even if one does not accept an originalist theory of Constitutional interpretation, substantial pragmatic problems militate against relying on contemporary foreign and international law as sources of constitutional authority. Therefore even those not disposed favorably toward originalism should be skeptical of the use of foreign law as persuasive authority.

First, the Constitution contains no rule as to which of the many bits of conflicting foreign rules of law should be used as persuasive precedent. Judges therefore are likely to use their own discretion in choosing what foreign law to apply and what foreign law to reject. Judges will use foreign law as a cover for their discretionary judgments.

Lawrence exemplifies this problem. While the European Union protects sodomy as a constitutional right, many nations still criminalize sodomy. Why should the Court look to the European Union and not these other nations? Perhaps the claim is that we share values with the European Union. But this a very vague rule requiring agreement on what values are relevant. We actually do not share all values with the European Union, as the war in Iraq showed. How do we do know we share their values about the appropriate way law should regulate sexual behavior?

Unfortunately, the Lawrence Court never answers this question. It instead simply felt free to pick and choose from decisions around the world the ones that it likes, to use them as justification or at least decoration for its own ruling, and to ignore decisions that are contrary. It is hard to think of a more ad hoc and manipulable basis for interpreting the United States Constitution.?

Second, the problem with using foreign decisions is that they are the consequence of a whole set of norms and governmental structures that are different from those in the United States. They may be appropriate for their nations but out of place in nations with different government structures. Lawrence's use of the EU decision is once again exemplary. European traditions are more favorable than American traditions to the imposition of elite moral views. Indeed, the European notion of human rights in constitutionalism is fundamentally different from ours: human rights in Europe are the product of a search for eternal normative truths to be imposed against democracy.8 This is quite different from the American conception of rights as products of democracy, albeit of the special democratic processes that produce the state and federal constitutions and their amendments.9 Moreover, the United States has a structure of federalism and more general traditions of decentralization that are important processes for testing the content of rights.

Thus, foreign constitutional norms do not just reflect certain views about the content of substantive rights but also a foreign mode of defining them. Any judicial opinion from another culture is the culmination of a complex institutional structure for producing norms. The low cost of accessing the mere words of a foreign judicial opinion can blind us to the fact that we are only seeing the surface of a far deeper social structure that is incompatible with American institutions. This does not necessarily mean that the American political system as a whole is better than that of some others, but it does caution against assuming that judicial decisions from other nations will produce the same good effects here that they may produce in a significantly different political system.

Third, promiscuous use of foreign law will undermine domestic support for the Constitution. The Constitution begins: "We the People . . . do ordain and establish the Constitution of the United States." In a formal sense, the entire Constitution is an expression of the views of the people of the United States, not some other people. Relying on international or foreign law except when the Constitution directs us to look at the law flouts this first principle. This formal points has social implica

7 The Court may be headed in this direction, not only in substantive due process, but in other areas as well. See J. Harvie Wilkinson III, International Law and American Constitutionalism 12 (forthcoming 2004) (wondering what principle judges can use to decide which foreign decisions to cite).

8 See Jed Rubenfeld, The Two World Orders, Wilson Quarterly, Autumn 2003, at 23. 9 Id.