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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."
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 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