tions. The Constitution has commanded respect and allegiance because it our Constitution, not a document imposed from abroad.

This is not a small point but goes to the heart of the stability of a political system. A Constitution cannot be maintained simply by self-interest, because the citizens would then free ride on the efforts of others. Thus, if self-interest is the only perspective that individuals have toward constitutionalism, the attitude adopted will be one of at most benign neglect: let others create the climate of watchful respect for constitutional fidelity that is necessary to preserve the constitutional order. One important feature of the American tradition that overcomes the potential constitutional tragedy of the commons are the bonds of affection that citizens have for their founding document. In the nineteenth century, this affection was marked by parades and celebrations. In our own time which has more distractions, the sense of public affection is no less important but harder to express. If foreign decisions become a routine source of constitutional law, citizens, except for the most cosmopolitan, will lose identity with the document. The emphatically American nature of our Constitution has been a source of affection and pride that have contributed to our social stability, 10

I want to close by discussing an argument that some may deploy to suggest that quite a bit of foreign and international law should be used in interpreting the Constitution. It is the claim that some clauses of the Constitution themselves contemplate an evolving meaning and foreign law can help chart the course of this evolution. Thus, the Supreme Court itself appears to interpret the cruel and unusual punishment clause in light of evolving standards of human decency rather than the standards at the time the clause was framed. It is in this context that the Supreme Court in Atkins v. Virginia cited to the worldwide community's general refusal to execute the cognitively impaired as evidence that evolving standards demand that the United States end such executions.11

Let us assume for a moment that the cruel and unusual clause should be tied to evolving standards in general It does not follow that the Framers would have wanted to tie these evolving standards to the standards of other nations around the world rather than focus only on domestic evolution. At the time the Constitution was framed the United States was one of the few republican nations in the world and the Framers often distinguished its practices from the world's ancien regimes. It seems very unlikely that given the self-conscious exceptionalism of the United States that the Framers would have wanted make the standards of our Bill of Rights depend on the practices of other nations. They would have no confidence that those standards would not represent retrogression rather than progress. Thus, not only do I find no evidence that a reasonable person would have understood our Bill of Rights to incorporate the evolving standards of foreign nations, the argument seems implausible on its face.

Lawrence's reliance on the law of the European Union to help interpret our Constitution was a mistake. Unfortunately, if accounts of Supreme Court Justices' remarks favorable to the reliance on contemporary foreign law in constitutional interpretation are accurate, Lawrence's error may not be an isolated one. 12 Passing this resolution, as revised along the lines I suggest, would therefore be a warranted expression of correct constitutional views and a respectful suggestion that the Court reconsider use of contemporary foreign law as persuasive constitutional authority. 13 Mr. CHABOT. Thank you, Professor.

And now the Members of the panel will have 5 minutes to ask questions. I will first recognize myself for 5 minutes for that purpose, and I would direct this question to any of the panel members that might like to answer.

Assuming the views that the "world community" should be considered when interpreting American law, what principle, if any, would exclude the consideration of the policies of, say, Communist China whose population alone includes nearly one-quarter of the

10 See Wilkinson, supra note 7 at 8. (suggesting that too much citing of foreign law will make the Justices seem out of touch with American culture).

11 Atkins v. Virginia, 534 U.S. 304, 317 (2002).

12 See Remarks of Justice Sandra Day O'Connor, Southern Center for International Studies, http://www.southerncenter.org/OConnor-transcript.pdf (seeming to urge greater reliance on foreign law in United States constitutional interpretation.

13 Parts of this testimony are based on Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris Mich. L. Rev. (2004).

entire world's population? I don't know, Professor Rabkin, if you might have an opinion about that. Then we can go down the line.

Mr. RABKIN. You know, I was going to hold back for the hard questions. That is not a hard question. It just shows that it's silly. When they talk about the world community, what they mean is their friends in Europe and also in Canada.

Mr. CHABOT. Okay. Professor Jackson.

Ms. JACKSON. I think it's a good question. As I tried to say earlier, I think that it can be helpful to interpretation to examine sources both to discern what we agree with and the discern how we are different, and if a lawyer were to bring to the Court a citation-I'm not aware that the People's Republic of China actually has a constitutional court. I don't think they have judicial review. I don't think they provide the kind of protection for rights that we value so highly. But if a lawyer were to cite something, you know, I think you might ask is it like Justice Jackson telling us about the Weimar Constitution so that we know how to construe ourselves differently, so that different kinds of sources will be used for different things, and should be, depending on their context. Mr. CHABOT. Thank you.

Professor Ramsey or McGinnis?

Mr. RAMSEY. Well, interestingly, in Atkins, the death penalty decision, one of the amicus briefs did cite the practice of the People's Republic of China and stated that the People's Republic of China did not execute mentally retarded offenders as one of the reasons why we should also not. Unfortunately, they got that statement wrong, as near as I have been able to determine. Actually, Chinese law does not exempt mentally handicapped offenders, but, nonetheless, they did make the citation.

My answer to your question is there is no principle basis. We may be able to say at the extremes that our values are close to those of, say, England and very far from those of, say, Somalia, but I think that drawing any kind of a principle line is going to be very difficult, especially when you start talking about countries that are large, prosperous, rights-enjoying democracies, but not out of exactly the same tradition as ourselves or at least some of our people, such as India, China-India, Japan, Thailand, Philippines. Those countries, we have many things in common with, many things not in common with. I would not like to see an argument to the Supreme Court where the lawyers took adverse sides on whether countries such as those were appropriate moral precedents, and I don't think there's any principle way to draw a line.

Mr. CHABOT. Thank you.

Professor McGinnis, anything?

Mr. MCGINNIS. I would just associate with myself with Professor Ramsey's remarks.

Mr. CHABOT. Okay. Thank you very much.

Let me ask, Professor Jackson, if I could ask you a question. You started out at the outset by saying that you're opposed to this resolution, and it would simply express the view of the House of Representatives. We've not taken the step of using our authority to alter the lower Federal courts under article I, section 8, for example, or to alter the appellate jurisdiction of the Supreme Court on

our article III, section 2. That step might be appropriate in the future, but we have not taken that step here.

Regarding the resolution, however, doesn't the House of Representatives or shouldn't the House have the right to express its views in a formal fashion as we're attempting to do here?

Ms. JACKSON. Well, I certainly think that Members of the Congress have a perfect right to express their views on issues of constitutional law and issues of constitutional interpretation. These issues concern all branches of government and all citizens.

What concerns me, Mr. Chairman, about a collective resolution from the House of Representatives is the fact the House of Representatives-that the Congress, of course, controls to some extent the jurisdiction of the Federal courts. The Congress is also the body in power to impeach and remove from office the justices, and my concern is that a resolution of this nature begins to trench on the courts with respect to the interpretive process; and if there is anything that I would think was a core judicial function for the courts, it is how to interpret.

And so it is those factors that lead me to be very concerned about the proposed resolution.

Mr. CHABOT. Thank you. One final question, Professor Rabkin: Could you comment on the implications relative to sovereignty if this transnational constitutional trend would take root in our courts?

Mr. RABKIN. Yes. That's a question I was waiting for.

Mr. CHABOT. Excellent.

Mr. RABKIN. Thank you.

The premise of this trend is, I think, very clearly subversive of the whole concept of sovereignty, because what it's saying is there are right answers to how things should be done, and all we need to do is to canvass the wise men and women of the world wearing robes, and then we'll find out what is the right answer and we'll implement it, and sometimes we'll learn from the wrong answers that the mistaken countries have done. But we're in this process of international dialogue among judges to find the right answer.

Now, the premise of that, if you think it through, is that we already live in a world community which is united in this common search for right answers, and if that is true, then sovereignty is pointless, and not only pointless, because we could trust judges of the world to tell us how to live so we don't have to make a big fuss, but not only is it pointless, but sovereignty then starts to look like something which is a dangerous obstruction to the process, because who are we to insist on our distinctive ways? Because the community of the wise have agreed that it should be this way. So we can't just drag our feet and say, "No, we're doing it differently because we're ornery Americans." That looks selfish. That looks blind. That looks bigoted.

So I don't think there's any question at all that there is a conflict between the notion of sovereignty, the moral claims of sovereignty, and the moral claims of these things.

Mr. CHABOT. Thank you, Professor.

The bells here mean that we have a vote, but I think we have time to go ahead with one more set of questions here. So the gentleman from California, Mr. Schiff, is recognized.

Mr. SCHIFF. Thank you, Mr. Chairman. I have to say I'm very struck by this discussion and several others that we've had in Committee and on the House floor, just how far we've come, I think, in a very negative direction when I look at some of the language that's being used in the memorandum, the majority memorandum, in preparation for this hearing today which describes this nation facing, "a judicial crisis in which judges are increasingly abusing their power as lifetime appointees and failing to faithfully interpret the laws by following their original meaning."

Further language: "An equally alarming trend is becoming clear. Judges in interpreting law are reaching beyond even their own imaginations to the decisions of foreign courts." Later discussion of this: "If unchecked, this will produce a further erosion of American sovereignty." The professor talks about-uses the word "subversive."

You would think we're talking about a wildly liberal activist Supreme Court in the country, and it must be a different court than I'm familiar with. Where is this judicial crisis that we're concerned about?

I think this resolution, this discussion, says a lot more about the strained relations right now between the Congress and Europe, between the Congress and the Court than it does about a few what appear to be relatively isolated cases of judicial opinions citing some foreign source of authority. There are a great many things that find their way into judicial opinions. There are references to popular culture, references to TV, to movies, to probably expressions like "Where's the beef?”

Are we going to resolve that courts should not cite these instances of popular culture or well-known literature because that is not what Congress was intending when it drafted the statute under interpretation? It also probably says something about certain decisions that a number of Members, maybe a majority of Members, don't like the result of those decisions.

But more than anything else, I think what this discussion and the resolution do is they provide a shot across the bough of the judiciary. This is simply a shot across bough, and I think we have to ask ourselves why are we shooting across the bough of the judiciary, and we are shooting across the bough in many directions, in many fashions. We are shooting across the bough when we threaten to subpoena the records of Judge Rosenbalm who comes before the panel and expresses what's an unpopular opinion with the panel. We shoot across the bough when we use the word "impeachment" in reference to the citing of foreign opinion. We shoot across the bough when we make massive reforms of the sentencing laws without allowing for the input of the judicial conference or the judges.

And the trend is a very negative one, in my opinion, and for this Congress that approves of agreements like chapter 11 of NAFTA which effectively allow other countries to challenge American laws, to raise such a fuss about the threat to our sovereignty posed by these isolated references when the threat to our sovereignty posed by interpretations of chapter 11 is so much more extraordinary is really striking to me. Now, that's not to say that we don't have the

power to do it. We do. We can legislate away our sovereignty, and occasionally we have.

The courts are not in the same position. They don't have the same latitude to precedent away our authority, and perhaps many of the foreign references that have been cited here are not references I would make if I were a judge. But that we have decided to showcase this issue, attack this, I think is part of a broader and more disturbing trend that is probably more significant than these isolated references to foreign opinion.

So I really don't have as much a question for our witnesses as this comment to make, and that is we are on a downward trajectory of our relations between the two branches which is not good for the Court and is not good for the Congress, and I would hope we would find other ways than resolutions like this to try to repair that relationship.

And I'll yield back the balance of my time.

Mr. CHABOT. The gentleman yields back.

At this time, we have a series of votes on the floor. We have a 15-minute vote and three 5-minute votes following that. So we're probably looking at a little more than a half hour before we can make it back here.

So we will be in recess until we come back. As soon as our Members are back, we'll get started again. And we thank the panel for their indulgence there.

So we're in recess for a short period.

[Recess.]

Mr. CHABOT. The Committee will come back to order.

The gentleman from Florida, Mr. Feeney, one of the principal sponsors of this resolution, is recognized for 5 minutes.

Mr. FEENEY. Thank you, Mr. Chairman, for holding this hearing, and I want to thank all of the witnesses. I'm grateful today; Professor Rabkin, you gave some testimony I very much appreciated. I read your comments. I would suggest, however, that we not ridicule this idea of a global law, because if you combine Conte's philosophy of an international peaceful democratic entity along with Plato's suggestion about how we best govern our ourselves with philosopher kings in charge, you've got exactly what we are slowly moving to, in my view. So there are some great rationale for it. It's just not anywhere in our Constitution, in my view.

And I really wanted to ask the panel a couple of questions. Professor Jackson, I appreciate your being here especially. It's not easy selling new ideas, but not every new idea is a good idea. So we will be interested in your perspective, because the other panelists, for the most part, seem to support the resolution.

But I would ask maybe the panel to comment on a couple of things and one question specifically for Professor Jackson. When Justice Ginsburg sort of justified in a speech the increasing use of foreign law-I think the speech I'm referring to was to the American Constitutional Society, entitled "Looking Beyond Our Borders, August 2, 2003"-she mentioned the Declaration, and you did as well in your discussion as sort of a justification for how we ought to-I think you referred to "have a decent respect for the opinions of mankind," but you'll recall, and I think Justice Ginsburg actually acknowledges it, but in your testimony, written, you don't, the