In other words, we're threatening impeachment if we disagree with the Court. That is the definition of intimidation.

Now, I will admit, Mr. Feeney, that I am very upset with some court decisions. I am very upset with the arrogance and the usurpation of power of the Supreme Court that purported to install in office the current President of the United States who lost by over a half a million votes and stopped the count, stopped the recount, in the State of Florida. I don't propose impeaching the justices of the Supreme Court, though some of them might deserve it. I was equally disturbed by the actions of the former speaker of the Florida House of Representatives who proposed at that time that if the count went wrong, if a Gore slate of electives were to be seated by the courts after completion of a recount, he said we'll take it away from him; we'll have the State legislature take away the power to select a slate of electives from the people; we'll pass a statute; we'll give it to the legislature, and we'll see a Bush slate of electives.

Now, technically that is a problem with our current Constitution, because I think the legislature would have had the power to do that, and we probably ought to consider amending the Constitution to prevent some future legislature from doing that, but talk about an arrogance of power and a disrespect for democratic, with a small "D," rights and the sovereignty of the people, that is far beyond what any court, even the Supreme Court of the United States in the Gore v. Bush decision, which will rank up there not quite with Dredd Scott, but with some other infamous decisions, has ever proposed to do.

Let me ask Professor Jackson the following question: In any of the cases that we have talked about today, has a foreign source been treated by any court, by the Supreme Court especially, as a binding precedent, and did any of these decisions turn on an authority from a non-U.S. source, or were these citations buttressing the reasoning of the Court from other sources?

Ms. JACKSON. In no cases were the foreign or international sources in these recent decisions we've been talking about treated as binding. Indeed, if you read the entire opinions, they occupy very, very small parts of the reasoning. There were many other authorities, also not binding, that were referred to by the courts in their decisions, including State court decisions and on occasion even law review articles written by law professors, who much as we might like to be able to bind, lack the power to do.

Mr. NADLER. So they are cited for their logic, but not for their binding nature?

Ms. JACKSON. Yes. That is correct.

Mr. NADLER. And none of these decisions turned on any of those citations?

Ms. JACKSON. Not in my judgment, no.

Mr. NADLER. So this is much ado about nothing in your opinion? Ms. JACKSON. Well, what concerns me is that I think that for Congress to say that judges shouldn't know about other laws and other legal systems is not conducive to the best

Mr. NADLER. So it's worse than much ado about nothing? In effect, it's taking-it's making-it's concern about something that isn't happening, an undue reliance, because none of these decisions have turned on a foreign citation, nor have any been treated as

binding; but we're talking about perhaps coming up with Congress instructing the courts-purporting to instruct the courts which, as I said a few minutes ago, I think is improper.

Let me read you a quote from the distinguished Chief Justice, the current Chief Justice of the United States, a distinguished justice not appointed by a Democratic or liberal president, Justice Rehnquist. He wrote the following, and I would like to ask your comment: "When many new constitutional courts were created after the Second World War, these courts naturally looked to the decisions of the Supreme Court of the United States among other sources for developing their own law. They cited U.S. Supreme Court decisions. But now that the constitutional law is solidly grounded in so many countries, it is time that the United States begin looking to the decisions of other constitutional courts to aid in their own deliberative process.'

Is the Chief Justice advocating something extra or anti-constitutional here, or is Justice Rehnquist being intelligent as he sometimes is?

Ms. JACKSON. I believe what Chief Justice Rehnquist recommended in those remarks, which I believe he made in 1989 and again to similar effect in 1999, is wise, not at all inconsistent with our Constitution, but indicating that we might be able to learn things, negative or positive, consistent with remarks of Judge Guido Calabrisi in the Second Circuit, who in a case a few years ago wrote about looking to learn, not to be bound, by other constitutional decisions, especially of countries that have modelled their constitutions on ours. Judge Calabresi said: "Wise parents sometimes learn from their children."

Mr. CHABOT. The gentleman is recognized for an additional minute.

Mr. NADLER. Thank you.

Let me just ask anyone else on the panel if anyone else wants to comment on Chief Justice Rehnquist's comment that, in effect, he said it is time that the United States begin looking to the decisions of other constitutional courts to aid in their own deliberative processes, that sometimes we might be able to learn, although not to be bound by the opinions of others. Any other comment on whether that's an intelligent comment or not? Professor?

Mr. RABKIN. When did he make that statement?

Mr. NADLER. He made it-I don't know. I think he made it 1989 or 1999.

Mr. RABKIN. Yeah. Well, just what I was going to say

Mr. NADLER. The quote is from 2004. The citation is 2004, but he obviously made it before that.

Mr. RABKIN. I think the context of this matters. You know, if there were just the occasional reference to some French court decision and then a quotation from Moellier, we would say, well, that's a very learned justice, but the context now is there is a very organized, pervasive, systematic campaign to say judges in different questions should support each other in pursuing similar paths. In that context

Mr. NADLER. Would you disagree with Professor Jackson when she said in answer to my previous question that in none of the cases cited with these foreign citations-none of the cases men

tioned with these foreign citations-in none of the cases cited do these foreign citations bind, in other words, that they weren't cited as binding precedent and none of these cases turned on them? Do you agree with that?

Mr. RABKIN. As a description of what's happened up to now, yes. Mr. NADLER. Thank you.

Mr. RABKIN. It could change in the future, and that's one of the things we are concerned about.

Mr. NADLER. Hasn't happened yet.

Mr. RABKIN. Has not yet.

Mr. NADLER. Thank you.

Mr. CHABOT. The chair recognizes himself for 1 minute out of order here. I'd just like to ask the other three panel members, the statement was made this is much ado about-the subject matter of this hearing is much ado about nothing or perhaps worse, would any of the other panel members like to comment on that?

Professor Ramsey.

Mr. RAMSEY. Yeah, I would. I think it's probably correct so far to say that these citations of foreign authority haven't had a substantial role in decisions that have been made; however, I think these things acquire a momentum and that major mistakes begin with very small mistakes. I'd like to real quickly give an example of a case that I think is very important. We were talking about it at the break. It involves the juvenile death penalty, that is the execution of persons who committed a crime when they were, say, 17 years old.

This has been something that has been recognized as constitutional by the U.S. Supreme Court for many years; however, it is a practice that is not widely followed around the world. In fact, it's quite unusual, in my understanding of it, around the word.

Following the Lawrence decision in which the citation of foreign authority was made, a lower State court took it upon itself to decide, and I think not entirely unreasonably, that the overwhelming weight of international authority against the execution of juvenile offenders called for a re-examination of our law which allows the execution of juvenile offenders. That case is now pending in front of the United States Supreme Court. I would be very interested to see how that case comes out. If the Court reverses itself, if it feels obligated by the weight of international authority to change its own. view not long ago stated of our Constitution, then I would say that is an example of quite a bit of ado about something, and I would recommend everyone keep an eye on that case.

Mr. CHABOT. Thank you. My time has expired.

The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.

Mr. HOSTETTLER. I thank the Chairman and I thank the panelists for your testimony today. It's been very enlightening.

And I appreciate your reference to the Federalists and the like and there is the idea of much ado about nothing and the fact that there is no problem of separation of powers here, and I guess if we do look to the Federalists, to the framers, we might suggest that you're probably right, that those-suggest that they're probably right. If I can quote Federalist No. 78: "Whoever attentively considers that different departments of power must perceive that in a

government in which they are separated from each other, the judiciary is beyond comparison the weakest of the three departments of powers. The judiciary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.""

And so when we talk about much ado about nothing and the lack of separation of powers, there hasn't anything changed fundamentally in our government to allow the Court to have any active resolution whatever in any of these decisions that we're talking about. Is that not true?

Ms. JACKSON. Is that directed to me?

Mr. HOSTETTLER. Yes.

Ms. JACKSON. I think the Court is playing the role of judicial review that was contemplated at the founding and that it can only decide cases or controversies that are properly before it.

Mr. HOSTETTLER. But can take no active resolution whatever, and they actually end by saying "and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments?" So with what we're talking about here, the Supreme Court could opine all day long, referring to whatever foreign document they'd want to whatsoever, and, in fact, they have no means by which to enforce or execute their own judgment. Is that not true? And that's why the Judiciary Act of 1789 created the U.S. Marshal Service, an agency of the Executive Branch.

Ms. JACKSON. The courts depend upon the executive to enforce their judgments, and we have a very valuable, I would call it, rule of law tradition that the judgments of the Court are respected.

Mr. HOSTETTLER. But you will have to admit that that is not a blanket situation, that that does not happen, for example, with Cherokee Indian tribes and the desire by Chief Justice Marshall to seat Mr. Marbury and his associates, that that suggestion of a blanket enforcement by the Executive with regard to these decisions, that doesn't happen except with the acquiescence and the positive action of the Executive Branch; is that not true?

Ms. JACKSON. I think the United States has a stunningly good record of the respect for particular decisions of the Supreme Court once they are issued.

Mr. HOSTETTLER. Right.

Ms. JACKSON. And I think it would be a terrible thing to lose that. It is one of the things that distinguishes us from many other nations and a very valuable part of our constitutional heritage. The Court can only decide cases or controversies. Once those are decided within our tradition, the parties are bound, and the judgment is to be treated as at least resolving that dispute.

As Congressman Nadler's pointed out earlier, there are mechanisms to change the Constitution. They have been rarely invoked. Those are the legal mechanisms for change if a line of decisions is deemed unacceptable to a majority of the people.

Mr. HOSTETTLER. You're not familiar with the elimination of jurisdiction from the Supreme Court, the power, for example, of the purse not to fund the enforcement of decisions by the Court and others?

Ms. JACKSON. I am unaware of any part of the Constitution that specifically says Congress could refuse to fund decisions of the Court, although under the history of the U.S. Court of Claims, in fact, it was the case that judgments would be entered and sometimes the litigants would have to wait a while before Congress appropriated the money; but my understanding is that once the Court had finally decided an issue, under our system it was really the obligation of other branches to give effect to that judgment. And as I said, I think that would be an important part of our constitutional tradition that we should not lose.

With respect to Marbury, the judgment of the Court was respected, because the judgment of the Court was that it lacked jurisdiction to issue any relief. So there was no judgment for anybody else in the judgment to enforce.

I know that there are widely reported stories about the inefficacy of judgments issued in the Cherokee Indian cases in the early 19th Century, but I think those are generally regarded as a very limited and unfortunate, unfortunate, exception from our ordinary practice. Mr. HOSTETTLER. May I have an additional minute?

Mr. CHABOT. Yes. By unanimous consent, the gentleman is granted an additional minute.

Mr. HOSTETTLER. If I can, Professor Ramsey, I think you have most succinctly put the situation as it is before us, and your written testimony reflects the dissenting opinion of Justice Scalia when you say, "The selectivity confirms that courts are not really being guided by foreign materials in their readings of specific texts, but are using foreign materials to support decisions of moral and social policy reached on other grounds." The justice put it this way: “It is clear from this that the Court has taken sides in the culture war."

So could you speak to the idea that Justice Scalia may have right concerns with regard to the future when he talks about "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, obscenity are likely sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision?"

Mr. RAMSEY. Well, I think some of those things are not widely practiced even in Europe, and so I think-my answer is it depends. Some of those practices, I think are perhaps somewhat on the nature of hyperbole, because they're probably things that would not come before the Court and probably would not require looking to international practices, but I think some of them are. I think that Justice Scalia has basically got it right here that the-that if the Court has an idea, if individual justices have an idea, of what they want to do in terms of moral and social practices, moral and social policy, and they can't find any support for it in U.S. law or in the values of Americans, that the use of foreign law gives them a whole other area to search for something that can support their opinion. So I think that's the danger that Justice Scalia sees in it, that it opens up the discretion of our court to pick and choose among their favored policies. If I could just quickly add, I think, actually, there's an additional danger which Justice Scalia probably or at least may not agree with me on, but it's highlighted by my example