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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. 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?
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 of the juvenile death penalty, that the Court having spent enough time relying on foreign sources, may suddenly find itself in a corner, that when foreign sources point unambiguously in one direction, the Court may feel compelled to follow them even if the Court left to its own devices wouldn't do that. I think that's the issue that's on the table in the juvenile death penalty, and I think then you would see a situation where the foreign sources were truly dispositive as opposed to being used to, as Justice Scalia says, buttress opinions arrived at for other reasons.
Mr. CHABOT. The gentleman's time has expired. The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Thank you, Mr. Chairman, and I thank all of you for being here.
Mrs. Jackson, I know that we've asked a lot of questions of you and you can fill this room with other professors or attorneys who would agree with you. You just happen to be the one here today. Since I only have 5 minutes, first of all, just the fact when we're talking about much ado about nothing, that normally is in the eyes of whoever is making that statement. I just cannot for the life of me think that these justices when they're quoting and citing these cases and sources, that they're either using them for persuasive ability themselves in reaching that decision or using them for pervasive ability for others to try to adopt their position.
I would just ask you this: Is there any country in the world today which you would be willing to say our courts should not look for interpreting our Constitution or our laws, the laws of that country?
Ms. JACKSON. Well, as I've tried to say, I think there are different kind of uses to be made, and if there are, for example, dictatorships that we don't want to be anything like and there is an aspect of their law that facilitates the dictatorship, I think it's perfectly fine for our justices to notice that and to say, as Justice Jackson did in his dissent in Youngstown, we do not want to be a place that has a feature like that which results in a dictatorship. So I have a hard—I think that the uses that can be made are so different in good judicial decision-making. I would tend to approach it in that way, what is the use, what are you trying to show by it.
Mr. FORBES. And forgive me for being short in my time, but would the answer be that there would be some countries that you would say they should not look to for interpretation of our laws in the United States?
Ms. JACKSON. There are some countries whose laws will not help us understand the positive meaning of our law.
Mr. FORBES. Let me give you this hypothetical: Suppose we have a country who was an enemy of the United States and adopted a written purpose that they were going to try to undermine the laws of the United States by undermining our Constitution. Would you agree with me, then, that we should not adopt the laws of that country for interpretive purposes for our Constitution and the laws in this country?
Ms. JACKSON. I don't think the Supreme Court adopts foreign law when it interprets the U.S. Constitution.
Mr. FORBES. Would you agree with me that they should not utilize that law for interpretive purposes for our laws in the United States, be it persuasion for their decision-making or to persuade others to follow the decision they have made?
Ms. JACKSON. It is hard for me to imagine a hypothetical country that's set up in order to undermine another country. I've not seen that in my experience looking at other constitutions.
Certainly there will be legal institutions and laws in the world that are not going to have positive persuasive value. They may stand as negative precedents for how we should adjudicate.
Mr. FORBES. Who will make that determination?
Ms. JACKSON. The justices who are charged with interpreting the law in the course of cases properly within their jurisdiction.
Mr. FORBES. Will it be like an obscenity, they just know it when they see it?
Or maybe one of you would like to respond to that. My big concern is that there could very well be countries out there who are hostile to this country, and they may not actually adopt in writing that practice, but they may have it implied. How will our justices know who our enemies are today; will they be our enemies today; will they be tomorrow? When the decision was decided in that country, were they hostile or not?
Professor, if you would like to respond.
Mr. RABKIN. This is not hypothetical. It is not remote. It's not implausible. This is where we are right now. One of the main purposes of the European Union, as its advocates and sponsors have been saying for decades, is to allow Europe to stand up to the United States, to allow Europe to counterbalance the United States. It is implicitly hostile to the United States, and one of the things that it is really set on is undermining American sovereignty, because they think an independent American State, an independent American nation is dangerous and makes it harder for them to put over on the world things that they want to put over.
I think this is exactly to the point, and if I just could say it's easy to mock what I've said and make it sound hysterical. I'm not hysterical. I'm perfectly calm. I understand that we're going to have to live with them and so on and so on and so on, but they have an extremely different understanding of what constitutions are, of what constitutional review, and that goes along with their having this sort of, well, we're not exactly really sovereign, but we yield up our sovereignty to something that isn't itself sovereign. They like running the world in that way, and we stand for the opposite principle. We stand for other things too, but at this point, we stand for the opposite principle, and I think they are absolutely trying to infiltrate into our judicial system this idea that our judges need to listen to what their judges say, and we should say no to that.
Mr. FORBES. My time is up, but thank you.
Professor Jackson, it's my understanding you have to teach a class and you have to leave. We've got two Members, which will be 5 minutes each, and then the gentleman from California has asked for an additional 2 minutes. So it's like 12 minutes. Could you stick around for that long, or do you have to leave?
Ms. JACKSON. Yes, sir, I can. Thank you for your consideration.