COMMITTEE ON THE JUDICIARY

U.S. HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

Markup Statement on H.Res. 568

Thursday, May 13, 2004

10:00 a.m. Room 2141 Rayburn House Office Building

            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.

            H.Res. 568 was introduced by Representatives Feeney and Goodlattee, and it is currently co-sponsored by myself, Mr. King, several other Subcommittee Members, and 63 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 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 ...”

            It is entirely appropriate that the House of Representatives express not only its surprise, but its disapproval, of this disturbing judicial trend. I urge all my colleague to support H.Res. 568.