the Supreme Court's citation to a foreign authority in Lawrence, confessed that, "It surprised me to see it in a majority opinion."

Americans, of course, are not subject to the dictates of one world government, but increasingly Americans are subject to the decisions of the United States Supreme Court that are based, at least in part, on selectively cited decisions drawn by a variety of foreign bodies. Americans' ability to live their lives within clear constitutional boundaries is the foundation of the rule of law and essential to freedom. There is no substitute for the unadulterated expression of the popular will through legislation enacted by duly elected representatives of the American people. The foundation of liberty turns to sand, however, when American must look for guidance not only to duly enacted statutes by elected legislatures and to decisions of American courts faithfully interpreting those statutes, but also to the often contradictory decisions of hundreds of other organizations worldwide.

I look forward to hearing from all the witnesses here this afternoon, and the Ranking Member is not yet here; but, Mr. Schiff, I don't know if you wanted to make an opening statement on behalf of the minority.

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Article VI of the Constitution clearly provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . . shall be the supreme Law of the Land.” However, today an alarming new trend is becoming clear: judges, in interpreting the law, are reaching beyond even their own imaginations to the decisions of foreign institutions to justify their decisions.

This hearing on H. Res. 568 will explore the appropriateness of citations to foreign authorities for the interpretation of American law. H. Res. 568 was introduced by Representatives Feeney and Goodlatte, and it is currently co-sponsored by myself, Mr. King, many other Members of the House Judiciary Committee, and some 60 other Members of Congress. It expresses a sense of the House that judicial determinations regarding the meaning of the laws of the United States should not be based on pronouncements of foreign institutions unless such foreign pronouncements are incorporated into the legislative history of laws passed by the elected legislative branches of the United States or otherwise inform an understanding of the original meaning of the laws of the United States.

In an October 28, 2003 speech, Supreme Court Justice Sandra Day O'Connor stated-quote-"I suspect that over time [the U.S. Supreme Court] will rely increasingly

on international and foreign courts in examining domestic issues." Justice O'Connor's prediction follows an already disturbing line of precedents in which the U.S. Supreme Court, in several recent cases, has cited decisions by foreign courts and treaties not ratified by this country to support their interpretations of the United States Constitution.

As one commentator has written, the "use of international sources in cases involving purely domestic concerns is alien to the American legal system, historically, and, if unchecked, will produce a further erosion of American sovereignty, in addition to the mischief already done by these cases." Indeed, the Declaration of Independence itself announced that one of the chief causes of the American Revolution was that King George had-quote-"combined to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws."

In Lawrence v. Texas, the recent decision striking down a Texas statute prohibiting same-sex sodomy, Justice Kennedy, writing for a majority, cites for support a decision by the European Court of Human Rights allowing homosexual conduct as evidence of a lack of world consensus on the illegality of such conduct. Whatever one's views on that issue, it should be evident that the relevant consensus behind American law is not a world consensus, but rather the consensus of those in the United States on the meaning of the words used in the Constitution and legislation when originally enacted.

As Justice Scalia stated in his dissent in Lawrence,-quote-"The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is... meaningless dicta. Dangerous dicta, however, since this Court . . . should not impose foreign moods, fads, or fashions on Americans."

Two years ago, in the majority opinion in Atkins v. Virginia, Justice Stevens struck down laws allowing the mentally retarded to be sentenced to death, on the grounds that-quote-"[t]he practice... has become truly unusual, and it is fair to say that a national consensus has developed against it." Strikingly, the footnote following that sentence, presumably to support the proposition of a "national consensus," cites to the views expressed in the brief filed in the case by the European Union. This was no doubt a desperate means of hiding the fact that no such "national consensus" existed, as the laws of 20 of the 38 states allowing capital punishment at the time allowed such executions.

In Grutter v. Bollinger, which upheld the use of racial preferences in university admissions, Justice Ginsburg, in a concurrence joined by Justice Breyer, began by noting with approval that the International Convention on the Elimination of All Forms of Racial Discrimination allows the theoretically temporary "maintenance of unequal or separate rights for different racial groups.” She then cited analogous provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, which, Justice Ginsburg noted in a speech a few weeks later-quote"sadly, the United States has not ratified." As commentator Stuart Taylor, Jr., has written, "If an international agreement that the United States has refused to ratify can be invoked as a guide to the meaning of the 136-year-old 14th Amendment, what will be next? Constitutional interpretation based on the sayings of Chairman Mao? Or Barbra Streisand?"

The citation of foreign judgments in opinions by American judges is far out of the mainstream. Even Drew Days, former U.S. Solicitor General under the Clinton Administration, when asked about the Supreme Court's citation to a foreign authority in Lawrence, confessed that-quote-"It surprised me to see it in a majority opinion.

Americans, of course, are not subject to the dictates of one world government. But increasingly, Americans are subject to the decisions of a United States Supreme Court that are based, at least in part, on selectively cited decisions drawn from a variety of foreign bodies. Americans' ability to live their lives within clear constitutional boundaries is the foundation of the rule of law, and essential to freedom. There is no substitute for the unadulterated expression of the popular will through legislation enacted by duly elected representatives of the American people. The foundation of liberty turns to sand, however, when Americans must look for guidance-not only to duly enacted statutes by elected legislatures and to decisions of American courts faithfully interpreting those statutes-but also to the often contradictory decisions of hundreds of other organizations worldwide.

I look forward to hearing from all our witnesses today.

Mr. SCHIFF. Mr. Chairman, thank you. I'm just going to make a brief comment that doesn't as much go to the nature of this specific issue, but something as I see it as a trend that concerns me, and that is the deterioration of the relationship between the Congress and the courts. I think we need to work on strengthening the bonds between our two coequal branches of Government, and through a number of actions that the House has taken the last several years, I think we have strained the bonds of comity between the Congress and the courts. And I would hope that when issues like this come up, that there is every opportunity given to receive input from the Judicial Conference, that we in the appropriate way and through the appropriate channels try to ascertain the impact of our decisions on the Judiciary and treat the Judiciary as a coequal branch in recognizing their unique role in our form of Government.

So I would hope that in our discussion of this issue and any other that we will work to facilitate that relationship and not further degrade it. Several of us have been working on establishing a new caucus within the Congress that's designed to improve communication between the Congress and the courts where we antici

pate working closely with the justices, with the courts of appeals, with the State courts to try to improve the quality and the quantity of dialogue between our branches, and I didn't want to let this opportunity go by without raising my concern over the changing nature of the dialogue or lack of dialogue between our branches in the hope that we show an appropriate deference and respect to the Judicial Branch.

And I yield back the balance of my time.
Mr. CHABOT. Thank you very much.

Would the gentleman from Florida who is one of the two principal sponsors of the legislation like to make an opening statement? Mr. FEENEY. Thank you very much, Mr. Chairman.

In addition to Congressman Goodlatte, Congressman Ryun, and Congressman King, I have been very interested in this, as you have, Mr. Chairman. I want to associate myself with the comments of Mr. Schiff. I do believe it's important that we have a great deal of comity between the three branches. I also think it's important to have a dialogue, as he suggested. One of the ways, not the only one way we have dialogues, is through sending resolutions from the Congress, and so I hope we can have an enlightened discussion about this issue.

I would also hope that we recognize the importance of an independent judiciary, but we ought to understand independence of the judiciary in its proper constitutional context. The judiciary should never have been independent of the Constitution or the laws of the United States themselves, because they give the foundation for the legitimacy for the judiciary in the first place.

One of the things I would like to point out, Mr. Chairman, if I could, at the outset is what this resolution doesn't do. This resolution specifically doesn't say the courts can't use foreign laws when interpreting, for example, treaties or understandings between different States. It also basically would never prohibit a court from using the legislative intent for a congressionally-enacted statute. If we look to Germany for its health care laws or France for its education laws, for example, certainly it would be appropriate in divining the intent of the Congress to look into foreign issues that informed the creation of the legislation itself; and, finally, it doesn't prohibit any court from ever looking at foreign laws as long as those laws inform an understanding of the original meaning. What it would do is to suggest, of course, that they could not look at, for example, a recently enacted statute or a recently enacted constitution overseas to interpret a constitutional provision that may be 215 years old, for example.

As the Chairman pointed out, increasingly Federal judges, including six United States Supreme Court justices, have expressed, in my view, disappointment in the original constitutional text that we inherited from our framers. In certain times, they have expressed disdain for laws enacted by democratically elected representatives. With disturbing frequency, they have simply imported new laws from foreign jurisdictions looking for more agreeable laws or judgments in the approximately 191 recognized countries throughout the world. They championed this practice and fancied themselves players on the international scene of juris prudential thought.

And while we are not condemning in this resolution any specific decision, we have looked not only to the decisions that the justices have issued increasingly in the last 15, 20 years, but also their comments off the bench which are very, very important to understand. The framers of our Constitution never suggested that we should be an island unto ourselves. We have the treaty power. We have the ability of the legislature to look to overseas laws and proposals. We've incorporated much of English and western civilizations' common law in our laws. We have provisions, under article I, that Congress can take the power to remedy offenses against the laws of foreign nations. But nowhere in the constitutional text ever does it suggest that we can have courts import foreign laws or foreign constitutional propositions.

Madison basically said in '47 when he quoted Monesque, "Where the powers of judging join with the legislative, the life and liberty of the subject would be exposed to the arbitrary control for the judge who would then be the legislator." One of the problems we have with importing foreign law that's never been ratified by any of the political branches, the elected branches, is that judges have enormous discretion. There are some 191 recognized countries by the United States State Department, and how is a judge, if this is an appropriate process, to discern which of the countries is appropriate to cite and which of the countries is not, one of the things that some of the witnesses, I think, will address today.

I note that Justice Breyer's speech to the American Society of International Law 97th Annual Meeting, April 4 of 2003, encouraged all of the professors and all of the lawyers and all of the law students to go out and research all of the international law, because he said the Supreme Court was incompetent because of the overwhelming body of constitutional law and statutory law to understand what all of these 191 nations are doing, and I agree with them. They are not competent to do so, but I also would suggest to him that it is inappropriate for them to be encouraging lawyers to come before them and do this.

Finally, citing Justice Breyer in that speech, he ends by talking about what an exciting revolution this is, and I quote him: "What could be more exciting for an academic practitioner or judge than the global legal enterprise that is now upon us? Wordsworth's words written about the French Revolution will, I hope, still ring true." In quoting, and this is Wordsworth's great poem about the French revolution: "Bliss was it in that dawn to be alive, but to be young was very heaven."

Well, my recollection about the aftermath in much of the French Revolution is that there was very little liberty as a result and much bloodletting. I'm here to defend the Constitution and liberty. Thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

I would also like to announce that all Members will have five legislative days to submit additional material for the record, and without objection, I will at this time submit for the record a written statement by Congressman Jim Ryun, who has also been a leader in this effort.

[The prepared statement of Mr. Ryun follows:]

PREPARED STATEMENT OF THE HONORABLE JIM RYUN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KANSAS

MR. RYUN. Mr. Chairman, I appreciate your decision to hold this important hearing. The disturbing trend of the Judicial Branch utilizing foreign and international laws in deciding legal cases must come to an end. I firmly hold that this practice is dangerous and undemocratic. I would encourage the Judiciary Committee to report H.Res.568 out of Committee and for the House to pass this important resolution.

In November 2003, I introduced a similar resolution, H. Res. 446, the Constitution Preservation Resolution, calling on the Supreme Court to stop using international law in its decisions. I saw the Supreme Court's increasing reliance on international law as a threat to the oldest democracy in the world and I stepped forward and took the lead on condemning their actions.

I am pleased that my fellow legislators, Congressmen Feeney and Goodlatte, came together in sponsoring this bill which is substantially similar to original legislation and that will effectively communicate to the Judicial Branch that international law has no place in its decisions.

Justice Antonin Scalia has been a leading advocate against this trend. In a dissenting opinion on Thompson v. Oklahoma he denounced the Court's plurality's reliance on international practice as "totally inappropriate." He argued, "The views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution." However, this is occurring in greater frequency.

In the Lawrence v. Texas anti-sodomy case, the Supreme Court majority relied on a series of decisions by European courts on the same issue. Justice Anthony Kennedy wrote the majority opinion of the court, in which he cites and makes reference to international law four times. Kennedy specifically says that the European Court of Human Rights has rejected the law being debated in Lawrence v. Texas. He goes on to say that since there is no "legitimate or urgent" reason in other countries for this law, the United States has no reason either.

In Akin v. Virginia, the Supreme Court noted that the world community overwhelmingly disapproved of executing the mentally retarded, and therefore found the practice unconstitutional.

In Grutter v.Bollinger, Justices Ruth Bader Ginsburg and Stephen Breyer cited the International Convention on the Elimination of All Forms of Racial Discrimination in their concurring opinion.

In Knight v. Florida, Justice Steven Breyer, in deciding a case focusing on allowable delays of execution, said he found "useful" court decisions on the matter in India, Jamaica and Zimbabwe.

The Court's usage of international law and opinions in decisions is completely incompatible with our democratic values and the proper role of the courts in our constitutional system. The American people have had no opportunity to vote on any of these laws, and, in fact, many international laws are often developed by United Nation bureaucrats, without any democratic input.

International law has no more place in our courts than foreign countries have in our elections. Foreign countries are expressly prohibited from influencing our elections. However, the Supreme Court, in using the laws passed by these countries to interpret and rewrite American laws, are achieving the same result-foreign interference in our government.

The Supreme Court holds an important role in the Government as defined in the Constitution. However, this is not the role it is defining for itself. Judge Robert Bork said, "If the views of foreign nations are relevant, they should be relevant to legislative debates, not in judicial interpretations of the Constitution." The Courts are overstepping their Constitutional boundaries. This Congress must keep the Court in check and pressure the Court to conform to its Constitutional role to decide cases based on the Constitution, not foreign laws or world opinion.

Mr. CHABOT. I'd now like to recognize the gentleman from Iowa, Mr. King, who is also a cosponsor and leader in this effort.

Mr. King.

Mr. KING. Thank you, Mr. Chairman, and I thank you for holding this hearing today, and I'd like particularly to thank Congressman Feeney and Congressman Goodlatte, but in particular Congressman Feeney, who I believe has in the brief time I've been in this room delivered a lot of what needs to be said about this issue.