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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 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.
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'li 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.
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.
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 entire reason Jefferson and his friends included that phrase, a decent respect for the opinions of mankind, was to say that as we dissolve our political ties to another State and as we assume our separate and equal station among the world powers and as we declare ourselves separated, because we have a decent respect for the opinions of mankind, we're going to explain to the rest of the world why we are separated, not incorporating their law, not acknowledging their law, but separating from it. And then, of course, later in a phrase that Representative King cited, one of the reasons we are separating is, of course, we don't want to subject ourselves to jurisdiction foreign to our constitution and unacknowledged by our laws.
So I think it's a little bit disingenuous, candidly, to use that specific phrase of the important expression in the Declaration.
With respect to the Constitution or the Declaration or even the Federalist Papers, I would like any of the panelists to give me an expressed provision that they think justifies the importation of foreign laws to determine the original meaning. Remember that's the phrase in the resolution. If you can find any, I would like to see
Professor Jackson, you refer to Federalist 63, but of course that is suggesting to Congress that we ought to pay attention to foreign countries, and I happen to totally agree with that. We're talking about whether our courts ought to.
And then the other thing that I would like, Professor Jackson, if you would address, because on the one hand, your comments seem to say what the courts are doing is not really new. I don't want to get into the details, but virtually all of the cases you cited either involve international law, international vessels, in one case, the sovereign community, the Native Americans, and so it's perfectly appropriate and would not only not be prohibited, but actually endorsed by the revolution that I've sponsored to do all of what historically you cited justices did until the last 20 years.
It is the new stuff that we're very concerned about, and I'm very concerned that one of things-you say on the one hand, nothing new is happening, but on the other hand, in your comments you suggest that it is appropriate for our courts since some countries endorse or ratify or adopt parts of our laws or Constitution. Then there is new a interpretation that their justices have. You think it's appropriate for our courts to adopt their new interpretation.
Finally, I would like to challenge all of the witnesses today, and I'll close with this, Mr. Chairman, by my quick summation, creating new law based on what foreign countries are doing, their constitutional law in courts, in my view violates at times articles I of the Constitution, because it usurps our legislative authority; violates article II, because it prohibits a presidential veto of new law; violates article III—violates article IV with respect to guaranteeing a republican form of government, because nobody is permitted to vote for the justices that are making this law by reference to foreign law; violates article V, the treaty provisions, because we end up at times basically ratifying agreements with other countries even though neither the legislature nor the President was involved in this new treaty; and, finally, violates article VI, the supremacy clause.
So my challenge to the professors is can you identify anything in article III that may be violated by creating new law by reference, because I haven't been able to yet, and you've got better background in this than I.
Thank you, Mr. Chairman.
Mr. CHABOT. The gentleman's time has expired, but the witnesses can respond to the questions as they would so choose to do so. I guess most of the questions were directed at Professor Jackson.
Ms. JACKSON. Thank you, Congressman Feeney, for your questions. I'll try to respond to them.
I certainly didn't mean to be disingenuous in referring to the Declaration. I think my remarks made clear that I think that foreign law and practice can help us both understand how we are separate, and there are many uses in the U.S. reports in which the Court says, “Well, they did it that way in England and we want it to change. There are also other places in the U.S. reports where the Court says we are trying to protect the same rights that Englishmen had and in which British cases and practice are used to inform our understanding of what our law is.
But I think the Declaration of Independence is also relevant in another respect here, if I may. The second paragraph of the Declaration begins with the statement that “there are certain truths that are self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights." And while the Declaration of Independence, of course, is not our Constitution, I think it is not unreasonable to look at some of the rights-protecting provisions in our Constitution as a written effort to provide protection to rights that were understood to attach to all people by virtue of their being people.
And so to that extent, some, at least, of the rights-protecting provisions in the U.S. Constitution are designed to protect rights that are widely shared, that should be understood to attach to human beings, and thus I think it is reasonable to think that we could learn something.
I want to resist the language of importing foreign law, because I don't think that's what the Court did in Lawrence. I think the Court referred to foreign law in much the same way that it referred to the decisions of five State courts in the United States, which the Supreme Court in Lawrence said since the Bowers decision had rejected the Supreme Court's reasoning about the Federal Constitution to reach a different decision under their own State Constitutional law, which can be different from the Federal Constitution as long as it doesn't violate the Federal Constitution. These are legal sources that are not binding, and I think that's an important point, but that illustrates how other courts thinking about similar problems have resolved them and, in that sense, I think are helpful.
Let's see. On the Federalist Papers, absolutely right. Federalist 63 was directed to the Senate and the benefit of the impartial counsel that sometimes one might get from other countries and sometimes I'm sure not, but in Federalist 79— I'm sorry-Federalist 80, there is a discussion about the need for the judicial power to be broad enough to resolve disputes in which foreign nations might have an interest. Now, that passage doesn't talk about how the