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 it.

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 Jack

son.

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

court will do it, but, as we know, our early court did invoke the law of nations in many cases.

It is true, Congressman Feeney, that in the last

Mr. FEENEY. With unanimous consent, Mr. Chairman, that Federalist 80, as I recall, is an explanation of the original jurisdiction delivered to the Supreme Court. So, again, it is pursuant to the Constitution that the U.S. Supreme Court has jurisdiction of those cases. This is not some new understanding that the Constitution or the Federalist Papers are suggesting.

Ms. JACKSON. It's an explanation of the reasons why the jurisdiction was extended, because of a concern that our courts be able to deal with disputes in which either foreign subjects or citizens or foreign nations had an interest. There is something new in that international law, particularly in the period since World War II, has become concerned, as many nations were, with the kind of gross abuses of human dignity that we saw during World War II. And beginning, really, in cases in the 1940's, the Supreme Court of the United States, in explaining our concepts of liberty (that's what I think is going on, is what do we understand our constitutional concepts of liberty and equal protection to refer to) began using the term "human dignity." Now, this is a new term, but it wasn't-I don't think of it as importing something foreign, but rather expressing the justices' understandings informed by what we and other countries in the world saw happen when basic human rights were trampled.

Mr. CHABOT. The gentleman's time has expired. Did you want to sum up what you wanted to say in response, Professor, or do you want us to move on to another questioner?

Ms. JACKSON. I probably have said enough, but the basic point, Mr. Chairman, is that what I see the Court doing with these references is trying to get the best understanding of the concepts involved in order to give the best interpretation to U.S. law.

Mr. CHABOT. Okay. Thank you.

The gentleman for Iowa, Mr. King, is recognized for 5 minutes. Mr. KING. Thank you, Mr. Chairman.

As I sit here and listen to this testimony today and I get a chance to hear the feel for some opinions which I dissent with and begin to reflect upon how this fits within the larger view and what can happen if we allow this to flow along and some of the other values that are around this world that might be chosen from the great menu of case law that's in this world today and I think in particular the case of Lawrence and what might happen if there were a particularly rigid justice that might decide to take some case law from other countries, other countries that have an exactly divergent view from that which is reflected Lawrence, in fact, countries that execute people for that behavior, and so I think it's really dangerous to go and borrow from somebody else's set of values when we have a body here and a number of our legislative branches from our political subdivisions all the way here to Congress that reflect the values of the United States of America.

In fact, I almost hear a presumption that foreign courts are more enlightened in some cases than we are here. And so, you know, I would argue that in the case of Lawrence v. Texas that the 10th amendment was set aside in preference to other case law from

other nations, in part at least, and that is something that is chosen, again, from the menu of preferred result, from my view, and I would also argue that in the case of Grutter v. Bollinger that the 14th amendment was set aside in preference for an idea that is written clearly in that majority opinion, and I'll describe it this way: that skin color has academic value as defined by diversity, not human experience, not diversity of human experience, but diversity itself as defined by skin color has an academic value that the university can only define when they reach this surrealistic critical mass that gives it the academic value, and only they can be the judge of that.

Now, I cannot for the life of me connect that kind of a definition to the Constitution itself or any Federal statute that we have, and so I'm very concerned about where this goes and where this takes us if there's this much latitude, and what's at the center of my question is, and I direct it to Professor Jackson, as she probably anticipated, and that would be you raised objection to the legislative branch intervening in the separation of powers, and so my question to you would be at what point would you be willing to acknowledge that the Congress has the authority and/or should step in to redefine this line of the separation of powers?

Ms. JACKSON. Well, Representative King, in just a point of clarification, in the Grutter decision, my recollection is that the only reference to foreign or international law was the reference in Justice Ginsburg's concurrence, and it concerned the idea that the Court could say something is permitted, but for a temporary period of time; and in connection with that piece, my recollection is she referred to some international documents that at least one of which we're not a party to, one of which I think we were. But I think it went to that rather than what I take to be what troubles you, which is that the Court concluded in Grutter that a particular consideration of race along with other factors

Mr. KING. Let me go a little further, and in that majority opinion, I believe it was written by Justice O'Connor that we should review this in about 25 years; maybe by then, we can reapply the 14th amendment.

Ms. JACKSON. Well, you know, what equality means in any given period of time, particularly given its remedial purposes, is something that we have learned does-our evaluations of it, the Court's evaluations of it from within U.S. traditions has, indeed, changed over time.

Mr. KING. And given the short amount of time that I have, excuse me, but could you address the central question? At what point would you be willing to endorse Congressional intervention in reestablishing the separation of powers?

Ms. JACKSON. I don't think the separation of powers is put in danger by anything the Supreme Court of the United States did in the Grutter case, and that's the difficulty I have with the question. Mr. KING. And what about-then let's go to Dredd Scott where we can agree.

Ms. JACKSON. In Dredd Scott, we had a Constitutional amendment in a civil war in which many people suffered greatly.

Mr. KING. And some of us believe that that's a case where the Court actually failed.

Ms. JACKSON. Many people do. The original Constitution at that time, however, had many ambiguous provisions with respect to an institution that was abhorrent and that is a deeply deplorable part of our history.

Mr. KING. So the Constitution, though, does give Congress the authority to step in and re-define this line at some point; would you concede that point, Professor?

Ms. JACKSON. I'm unclear on what line. I do not think Congress has authority to direct the Supreme Court how to interpret cases within the judicial power that the Court is deciding. I think there was a case-it's not in my statement. I'm sorry-called Klein v.The United States from the 1870's where the issue before the Court had been whether someone who had received a presidential pardon was entitled to be compensated for property taken by the northern armies. The Congress was very unhappy that the Court concluded that people who had been pardoned were eligible for this compensation. So it enacted another law that had many provisions, and it's a complicated case that I don't have time to do.

And the Court said, "Congress, you can't tell us to decide the case this way; this is for the Court to do."

Mr. KING. So one could conclude, then, from your response that you wouldn't recommend that Congress intervene at any point that you would be willing to define?

Ms. JACKSON. Not with respect to how the Court interprets the Constitution.

Mr. KING. Thank you.

Mr. CHABOT. The gentleman's time has expired.

The gentleman from New York, the Ranking Member of the Committee, Mr. Nadler, is recognized for 5 minutes.

Mr. NADLER. Thank you.

Let me begin by saying, to answer Mr. King, Congress can step in at any time to propose a Constitutional amendment. That's the only way it can do it.

Let me begin by saying that I think it is wholly improper. This resolution is wholly improper. Any resolution purporting to tell the courts that this decision was wrong or that decision was wrongwe passed a couple of them last year-I think is improper. It would be as improper as the Supreme Court saying to Congress that the bill we passed was stupid or wrong. I mean, those are both violations, it seems to me, of separation of powers.

If we disagree with a Supreme Court decision, if that decision is interpreting the law, we can change the law. If that decision is interpreting the Constitution, we can propose an amendment to the Constitution. That is our role. To simply pass free-standing resolutions saying that the Court is wrong or the Court didn't do that is as at best ultra vires and a violation of the separation of powers, and at worst, an attempt at intimidation.

I have here a MSNBC report quoting the sponsor of this resolution, Mr. Feeney, saying, "This resolution advises the courts that it is improper for them to substitute foreign law for American law or the American Constitution. To the extent they deliberately ignore Congress admonishment, they are no longer engaging in good behavior within the meaning of the Constitution and may subject themselves to the ultimate remedy, which would be impeachment."