HOUSE RESOLUTION ON THE APPROPRIATE ROLE OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES

TUESDAY, JULY 19, 2005

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,
Washington, DC.

The Subcommittee met, pursuant to notice, at 4:05 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.

Mr. CHABOT. The Committee will come to order.

Good afternoon. I would like to thank everyone for coming. This is the Subcommittee on the Constitution's hearing on H. Res. 97. Today we are examining the appropriate role of foreign judgments in the interpretation of the Constitution of the United States. This hearing is important for a number of reasons, but, most importantly, to make clear from this Subcommittee's perspective that the Supreme Court's reliance, or any court's dependence for that matter, on foreign judgments in the interpretation of our Constitution has no place. I would like to thank the distinguished gentleman from Florida, Mr. Feeney, for his continued work on H. Res. 97.

We have a distinguished panel before us today, and I look forward to their testimony before this panel. I know that you all have busy schedules, and I know that Members of this Subcommittee join me in thanking you for taking the time to share your expertise. This hearing is timely as our attention is turned to the activities unfolding across the street. As the nomination process moves forward, I am reminded of article VI of the U.S. Constitution, which states 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; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives . . . and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution."

Article VI and the oath that we all, including judicial officers, take as representatives of our Federal system of government, binds us to uphold and protect the Constitution of the United States of America.

Unfortunately, over the last several years, we have witnessed a trend, a dangerous trend, I believe, in which the judiciary has strayed from its oath and duty to uphold the meaning of the Constitution. By looking to and relying on the decisions of foreign courts in the interpretation of the Constitution of the United States, the judiciary not only is undermining the vision of our Founding Fathers but is chipping away at the core principles on which this country was founded, chipping away at our Nation's sovereignty and independence.

When our country declared its independence from Britain, the Founders were very aware and concerned that King George had "combined to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws." and, in drafting the Constitution, Alexander Hamilton stated in Federalist No. 78 that "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure, or anyone else's, to the constitutional intentions of the legislature," making clear in the Constitution that there is no place for the use of Federal opinion. Despite our history, the vision of our Founding Fathers, and the clear mandates set forth in the Constitution, the judiciary has continued to rely, I think, and value foreign opinion in the interpretation of the United States Constitution. This past March 24, the Supreme Court in Roper v. Simmons cited the practice of other countries in striking down the death penalty, concluding that "It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." in looking to the international consensus, Justice Kennedy clearly neglected to look to the consensus citizens of the 20 States that continued to allow the practice until March.

This is not an isolated case. In 2003, in Lawrence v. Texas, the Court cited a decision by the European Court of Human Rights as a lack of world consensus on the illegality of such conduct.

In 2002, in Adkins v. Virginia, the Court referenced the views of the European Union's brief filed with the Court in a footnote to its decision to find death sentences for mentally retarded individuals unconstitutional.

Our country has evolved to where there is enough precedent and enough corpus juris which a court can use to interpret and determine whether the laws of Congress or of the several States are permissible under the confines of our Constitution. Furthermore, our Constitution is clear as to its supremacy and to the role of the judiciary in upholding this constitutional tenet.

Americans deserve certainty, most of all, from the principles on which this country was founded. They deserve to know the meaning of our Constitution as intended by our legislatures under our body of law, not as intended by the world. H. Res. 97 is necessary now more than ever to remind the Court and all representatives, elected and appointed, who took an oath to uphold their obligation, both to the Constitution, and to the American people.

I look forward to hearing from our panel of witnesses on this issue this afternoon and on H. Res. 97. And at this time, I will yield to the gentleman from New York, Mr. Nadler, the Ranking Member of this Committee for the purpose of making an opening statement.

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, I want to join you in welcoming our witnesses today. As we await the President's nomination of a new justice of the Supreme Court, it is important that this Committee consider the role of the judiciary in our system of Government. I hope that the Senate will, in considering the lifetime appointment of a Supreme Court justice, exercise its constitutional duty of advice and consent and not act merely as a rubber stamp.

Our main concern, Mr. Chairman, is that attacks on the judiciary in this Committee have crossed the dangerous and inappropriate line between acceptable commentary and response, and potentially destructive attempts to destroy the separation of powers, which has been one of the foundations of our freedoms.

Congress may certainly change legislation if we are not satisfied with the Court's interpretation of the law. Congress may also choose not to exercise powers the Court has said we have under the Constitution. In rare and extraordinary circumstances, we can even initiate an amendment to the Constitution. We may not always agree on policy, but these are all powers given to Congress under the Constitution.

This Committee and this Congress, however, have begun to stray from the appropriate to the dangerous. While I realize that some issues before the Court arouse strong feelings, Congress has a duty to set a reasoned example to the Nation. Lambasting the courts as unelected judges-if that were not the design of the Governmentundercuts the protection of our liberties.

This Subcommittee, despite its name, has never taken the time to look into the Court's long and worrisome record of using the 11th amendment contrary to its intent, limiting the reach of the commerce clause in undercutting Congress' powers to enforce the 14th amendment in ways that have undercut our civil rights laws. The outrage has sometimes proved selective.

Threats of impeachment, attempts to eliminate Federal court jurisdiction to rule on certain select issues, even an amendment to the budget a few weeks ago, to the appropriations bill to say no funds appropriated herein to the Justice Department may be used to enforce a specifically named decision of a Federal district court, ex parte communications with Federal judges concerning their actions in a particular proceeding, threats or subpoenas in cases where Members of this Committee disagree with a certain result, and the even inflammatory comments approving of violence against judges do a disservice to the foundations of our constitutional system of Government.

Today we examine the use of non-U.S. sources in judicial decisions. I continue to believe that this is a big fuss over nothing. No case has ever turned on a foreign source. No foreign source has ever been treated as binding, and this phenomenon of citing foreign sources is certainly nothing new. What is really dangerous is the threats that accompany our deliberations, and the suggestion that Congress may exercise its power to tell the courts what is or is not appropriate, what is or is not an appropriate way to consider a complex issue. Our courts should not decide important issues with blinders anymore than should Congress.

I would also remind my colleagues who voted for NAFTA, who are contemplating voting for DR-CAFTA, that our sovereignty is far more threatened by the remedies available to foreign corporations and governments because of NAFTA, and prospectively because of CAFTA, than because of anything that has appeared in these court decisions, whether it is international bodies telling us which laws we cannot-we can and cannot have or enforce, or foreign corporations seeking remedies against our businesses. And if our Members are really concerned about threats to our sovereignty, they will look at these foreign agreements which cede sovereignty to World Trade Organization tribunals as to which of our own laws we can enforce and which we cannot.

I welcome our witnesses, and I look forward to hearing their testimony. I would also ask unanimous consent that Members have 5 days to revise and expand their remarks and include additional materials in the record.

I thank you, Mr. Chairman, and I yield back.

Mr. CHABOT. Thank you. Without objection, so ordered.

The gentleman from Florida, Mr. Feeney, who is one of the two principal sponsors of this legislation. If he would like to make a brief opening statement, I am sure the Committee would welcome that.

Mr. FEENEY. I thank the Chairman. But before I do that, I would like unanimous consent to place into the record a statement by our good colleague, Congressman Bob Goodlatte, who is cosponsor of the Feeney-Goodlatte resolution.

Mr. CHABOT. Without objection so ordered.

Mr. FEENEY. Thank you, Mr. Chairman, again for holding a hearing on a very important issue.

Six Supreme Court U.S. justices have approvingly been described by Professor-actually Yale Law Dean Harold Koh-as transna tionalists. They have increasingly expressed essentially disappointment in our own U.S. Constitution as originally written by the Drafters and Framers of our Constitution by importing foreign laws, fads, constitutions, and political polls to somehow create or reinterpret against their own 20- or 10-year-old precedence on the bench from the U.S. Supreme Court to reinterpret the meaning of our very Constitution.

With disturbing frequency they have looked at and looked all over 191 nations recognized by the United States State Department for some favorable or agreeable laws that they could use to justify their result-oriented approach.

So I want to thank Mr. Goodlatte and many others on this Committee. We hope to have a great civics debate as part of this discussion as we tee it up in the United States Senate in terms of what the appropriate role of the United States justice ought to be.

If we are going to have a Republican government small arm— meaning that people get to elect policymakers-I think every American, from third grade to the end of their retirement years, ought to understand what the appropriate role of the Justice is.

That is, in my view, to interpret the original meaning of the Constitution and to interpret the laws as intended by the law-givers in the States and the Federal-at the Federal level.

In the Declaration of Independence, Jefferson and the Founders explained the rationale for war against and separation from Britain. Among other things, they alleged that the King had combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws.

Yet it appears that is exactly what is happening to the extent that we have Supreme Court Justices relying on contemporary fads, following polls, laws, et cetera, in order to somehow reinterpret the United States Constitution. The most recent alarming decision was in Roper v. Simmons. Again, the United States Supreme Court undermined its own precedent. This is not something that they were looking as comparative analysis or thought that it would be interesting to make note.

You know, I would say to my friend from New York that indeed they did rely at least in part on foreign laws to change their own precedent with respect to whether or not people under the age of 18 can ever be subject to the death penalty in America.

Never mind that a majority of the States that have the death penalty, elected legislatures by the people, allow a 17-year-old murderer under certain circumstances to be put to death. In Florida, over 70 percent of the people have amended our Constitution to allow for the egregious circumstances for people under the age of 18.

So with one fell swoop, based in part on foreign law, we have the United States Supreme Court or a majority anyway-throwing out constitutional referendum in Florida and throwing out the laws of a significant portion of our States.

They did the same thing in Adkins, overturning their own precedent-democratically elected policymakers' decisions.

They did the same thing in Lawrence v. Texas on the issue of whether or not the State of Texas had the right to regulate sodomy. By the way I won't necessarily quarrel with the outcome of any of their decisions. It's exactly the fact that they relied on international laws, fads, institutions, constitutions, et cetera.

It is important to read what the Feeney-Goodlatte resolution does. I would say to Professor Cleveland, we certainly welcome your comments. I am glad that you are here today because this is an interesting case. I was surprised, when I found and read your testimony, that I agree with a great deal of what you have to say. Indeed, it's often appropriate to cite what is going on in other countries.

In interpreting our Constitution, for example, it would be hard to understand the administration of powers if you hadn't referred to Montague, who Madison says is essentially the founder of the concept of separation of powers. Our Founders were terribly familiar with everybody from Plato, Cicero, Lock, Mill, Blackstone, for a definition of the words "law of nations." one of the problems we have here today is people are confusing the term "law of nations," which is in article I of the Constitution, with international law. These are very different things.

I would refer you to Mr. Blackstone's description of what the law of nations are. It is actually something that doesn't change over time; God-given rights like Jefferson referred to in our Declaration.