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.

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

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.

Mr. CHABOT. Let me move to the gentleman from California who has asked for an additional 2 minutes, and he'll be granted that at this time.

Mr. SCHIFF. Thank you, Mr. Chairman. I appreciate it.

Professor Rabkin, it's not my desire to mock in my comments, but really the language that you use when you talk about an organized, systematic, pervasive effort, it sounds like an international judicial cabal of some kind, an international judicial conspiracy at work. You talk about it being subversive. You use words like "infiltrate," and given the already inherent hyperbole of the Congress, you're adding fuel to the fire.

Professor Ramsey says that this may not be a huge problem now, but there is a momentum in these things, small mistakes become magnified. Well, that applies to the Congress too. When we make small mistakes, they become magnified. When we establish a precedent of breaking down the independence of judiciary, it may be in a small form now, and here in this resolution, it may be in a much more significantly damaging form later.

I'd like to just conclude my remarks by quoting the Chief Justice's year-end report at the end of last year where Justice Rehnquist wrote that he wanted to focus on the relationship between the Judicial Branch and the Legislative Branch. During the last year, he wrote, "Tt seems the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the Protect Act, making some rather dramatic changes to the laws governing the Federal sentencing process." He acknowledges it's well within the legislative function to do so, but he points out this act was enacted without any consideration of the views of the judiciary. "It is the Congress' job to legislate, but each branch of government has a unique perspective, and taking into account these diverse perspectives improves the process. Obtaining the views of the judiciary before the Protect Act was enacted would have given all Members of Congress the benefit of perspective they may not have been aware of on this aspect of legislation and other aspects that deal with the delicate process judges understand well." Finally, he concludes: "Judges have a perspective on the administration of justice that is not necessarily available to Members of Congress and the people they represent. Judges have again by constitutional design an institutional commitment to the independent administration of justice and are able to see the consequence of judicial reform proposals that legislative sponsors may not be in a position to see. Consultation with the Judiciary will improve both the process and the product."

And I don't think there's been any consultation with the courts on this issue, and I think this is just another illustration of what the Chief Justice wrote not 14 years ago or 15 years, but, in fact, wrote just a few months ago. I think we would all be well advised to take the Chief Justice's admonition into mind and work to improve our communication and not take gratuitous shots across the bough.

Mr. CHABOT. The gentleman's time has expired, but if the professor would like to respond.

Mr. RABKIN. Yeah. What you quoted there is Rehnquist saying don't change the law in ways that will affect the Judiciary without

consultation. This resolution is not changing the law. It is expressing a philosophical viewpoint, and I think the philosophical viewpoint of the Congress is not going to change because of consultation. The Congress believes what it believes, which happens to be what the country believes, and if you and the courts believe otherwise, okay; you express yourselves.

Mr. SCHIFF. And, professor, you think that the combination of this effort, the threat of subpoenaing a Federal judge for his sentencing records

Mr. RABKIN. That's something else. I wasn't testifying on that. I don't know about that.

Mr. SCHIFF. The cumulative impact, you don't think has chilling impact on the independence of the Judiciary?

Mr. RABKIN. I don't know about the other things, but this seems to me extremely sensible, and this is the thing which we're testifying about.

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

I'd ask unanimous consent that the gentleman from Virginia, Mr. Goodlatte, who is a Member of the overall Judiciary Committee be granted 5 minutes to ask questions, and he's recognized.

Mr. GOODLATTE. Mr. Chairman, thank you very much. I want to thank you and the other Members of the Subcommittee for your forbearance in allowing me to testify. This is an issue in which I have great interest and was pleased to introduce along with my colleague and good friend Congressman Feeney, this resolution, and I by no means think this is much ado about nothing.

I would say to the gentleman from California that, quite right, there should be great consultation between the Congress and the Judiciary on matters that are of mutual concern, and I would welcome the opportunity if this Subcommittee or the full Committee were to invite Justice Rehnquist and the other justices of the court to come down and have a discussion with us about these very important issues. I presume that these are issues that are not a matter of being much ado about nothing; otherwise, a very intelligent member of the Supreme Court like Justice Breyer would not have included such surplusage in his opinion if he thought it was much ado about nothing. I presume that Justice Scalia did not think it was much ado about nothing if he felt that it was of such great significance that a decision of the Court, which was having great difficulty finding anchor in any language in U.S. Constitution or any laws passed by the Congress to anchor that decision, would point out that reliance was made in interpreting our Constitution upon the views and decisions of other courts.

And I am especially concerned when justices go even further as Justice O'Connor went when she stated in a speech last year that, "I suspect that over time, the United States Supreme Court will rely increasingly, rely increasingly, on international and foreign courts in examining domestic issues."

So I think the Congress is quite right to catch this at an early stage when it is perhaps used in limited fashion by the courts, but clearly in such a way that many members of the Court-I understand six members of the Court have indicated a desire to do this further in the future.

Let me ask you, Professor McGinnis, you bring up a very important point in your testimony that the Constitution is unique and special because its authority is derived from the people of the United States of America. In your opinion, when the courts use foreign laws to interpret the U.Š. Constitution, does it in effect weaken the authority of the Constitution by supplementing the will of the American people for the will of the foreign governments?

Mr. MCGINNIS. I think over time, it's not so much the substitution of the will, but I think it dissolves-it's a danger of dissolving the affections that Americans have for their own Constitution. Constitutionism has a great problem.

Who is going to defend the Constitution? Madison tried to focus on this. He thought that citizens aren't going to simply defend it out of their own interests; they have got to have some affection for it. And one of the things that creates affection for the Constitution is it's their Constitution, and if systematically over time the Supreme Court relies, as you quite correctly say that Justice O'Connor suggests, increasingly on other law, I think that starts to dissolve these crucial bonds.

So I think that is one of the really long-term dangers of the trend that is beginning.

Mr. CHABOT. Well, thank you. And one of the things that concerned me, I found striking the language that Congressman Hostettler read from Federalist Paper 78 about our Founding Fathers' perception of what the power of the Judiciary would be, and I think today we would find it equally striking to us that they would have such distant and remote view compared to the actual power that the Judiciary exercises today. And one of the issues. that is underlying this resolution and I suspect future clashes, if you want to call it that, between the Congress and Judiciary is the question of whether the Founding Fathers, having taken that view, really placed in our Constitution enough checks and balances on this power or whether it's simply a failure of the Congress and the Executive Branch to act in response to the acquisition of power that has taken place on the part of our Judiciary, not to simply interpret the laws and fairly resolve disputes between parties, which I think they clearly contemplated and which I think every Member of this panel would say they clearly contemplated, but to take it further, to actually rewrite our laws and effectively finding in our Constitution things that the vast majority of the American people do not find.

So I would express my concern and ask any member of the panel if they have any thoughts on what measures the Congress could take to effectively exercise that system of checks and balances that is so clearly contemplated in our Constitution against abuse of power. Clearly, we've never removed anybody from office for misinterpreting in our view a section of the Constitution, and clearly we have never taken the steps that have been discussed by others, and perhaps we could, but they are very difficult steps.

Are there other things that we should be looking at to check unbridled power on the part of the Court?

Mr. CHABOT. The gentleman's time has expired. The panel, any members that would like to address that, can. I would ask them if they could please be brief. We've got one more questioner and