Testimony on H. Res. 568

by Prof. Jeremy Rabkin

Cornell University

Before The

Subcommittee on the Constitution

U.S. House of Representatives

March 25, 2004

Thank you for inviting me to take part in these hearings. I believe the proposed resolution is an appropriate response to a disturbing trend. I very much hope the committee and ultimately the whole House will give it their full consideration.

Let me start by placing these recent Court rulings in larger context. To date, the U.S. Supreme Court has invoked the legal standards of foreign countries in only a handful of cases - that is, cases dealing with the U.S. Constitution. In all of these cases, references to foreign practice or foreign opinion might fairly be described as incidental to the Court's reasoning. So, it may seem that these references are nothing to get excited about.

But if justices who favor citations to foreign claims are content to mention them in footnotes, other justices have taken the trouble to repudiate such references in the text of their opinions (as, for example, both Chief Justice Rehnquist and Justice Scalia did in Atkins). In all likelihood, the critics recognize that what seems a mere stylistic or ornamental element in recent opinions is not something that is occurring in isolation. In fact, the U.S. Supreme Court is flirting with a trend that has already been taken quite a bit further by other courts in other countries. Robert Bork, who surveys the trend in a recent book, calls it "transnational constitutional common law."

The issue, therefore, is not whether any harm has been done by the handful of recent incidental citations by our Court. It is whether the American judiciary should join this larger trend. I think it is proper to express alarm at the first hint that the U.S. courts would join this trend. In what follows, I will lay out three main objections.

First, reliance on foreign legal opinion will encourage judicial activism. One of the main reasons why judges cite precedents is to demonstrate that their decisions are not simply based on their own personal preferences but follow, in some way, from recognized legal standards. If foreign rulings are relevant guides to the law, then judges have a much larger range of precedents to choose from -- or to hide behind.

The point is well illustrated by the two recent cases in which the Supreme Court's majority did invoke foreign standards -- Atkins v. Virginia and Lawrence v. Texas. In both of these cases, the Court was reversing decisions it had made only some fifteen years earlier.

The Court was therefore at pains to explain why the Constitution had meant one thing in the 1980s and now should mean something else.

Foreign opinion was invoked to give more respectability to the Court's change of heart -- or rather, to the shifting balance of votes among the justices (divided now on the issues in these cases, as they were in the 1980s, but with a majority on the other side).

If contrary foreign rulings provide justification for changing American law, then American judges may find many pretexts for abandoning existing precedents and launching in new directions. And the choice will almost always be up to the judges, since foreign courts and foreign standards reflect wide variation. The Court remains free to adopt European views on capital punishment for murderers of subnormal intelligence -- as in Atkins. Evidently, it does not feel bound, however, to embrace the European view that the death penalty is always improper.

Similarly, there is no indication that the Court is prepared to consider European stances on abortion, which are generally more restrictive than the standards which the U.S. Supreme Court has asserted. The Court seems to regard foreign precedents as something to invoke or ignore, at its own convenience. So instead of limiting the Court, the practice allows the Court to be more free-wheeling. That seems to me bad in itself for an institution whose authority depends on its claim to be discerning law and not merely imposing its own choices.

Of course, there is often dispute about what the Constitution really does mean and how it should be interpreted. It may be that some past rulings of the Court should be reconsidered. But this brings me to my second point. Appeals to foreign practice tend to undermine the notion that we really do (or really should) have a distinct constitution in our own country. Appeals to foreign practice imply that the ultimate issue is simply what the wisest

heads regard as the best solution. What we have actually agreed to accept in this country then begins to seem a matter of minor or merely transitory importance.

I am not making a simple-minded appeal to democracy. Courts are not democratic institutions. And it is only in a very figurative sense that our Constitution can be described as "the will of the people," since the people who actually ratified the Constitution, the Bill of Rights and the Fourteenth Amendment have long ago passed on to their rewards. Still, our federal judges are chosen by a political process -- in recent years, a very partisan political process -- which does answer to our own voters. We implicitly appeal to our citizens to put up with court rulings they find objectionable in the interest of maintaining a common constitutional framework. It is a big leap beyond this understanding to ask Americans to put up with a ruling because it is what foreigners happen to approve.

I think such appeals are bound to undermine respect for law in this country. European courts cite each other. An entire structure of supranational law has been constructed on top of national constitutions in Europe -- all by the aggressive application of treaties, which judges in national governments have embraced in part because it gives them more authority in facing their own national parliaments. It may be that Europeans are more comfortable deferring to the guidance of elites, including foreign elites. Apart from Britain, almost all European countries are governed by constitutions which were cobbled together after 1945 or after still more recent periods of dictatorship. Perhaps Europeans prefer foreign supervision to the tyrannies they fell prey to when they were sovereign. But it would be an enormous change for Americans to live by the promptings of foreign authorities. We are less likely to come away with the belief that we have acquired a better, more cosmopolitan constitution, than with the cynical suspicion that we have been left with no constitution at all.

If all this seems rather abstract, let me conclude with a more immediate political point. Resort to foreign precedents may not be disciplined by any sort of clear theory or strict doctrine -- as it surely is not now. But it is not likely to be random. Our judges will not invoke precedents from China or Russia or Saudi Arabia. What we are most likely to get is what we have recently gotten -- appeals to the sensibilities of western European judges or officials. We share many notions with European legal systems and for just this reason, drawing instruction or inspiration from European courts may seem plausible.

But we also have fundamental differences and some of our most fundamental differences center on the importance of self-defense. American courts have generally been very deferential to the President and Congress when it comes to basic questions about military operations. Our Supreme Court refused in 1980 to question the propriety of an all-male draft. The European Court of Justice directed the Federal Republic of Germany that limits on the participation of women in the German military were contrary to European norms. Our courts have been very reticent about challenging our military's restrictions on the participation of homosexuals. The European Court of Human Rights instructed Britain that it must admit homosexuals to its armed forces. Our courts have been broadly deferential to executive decisions regarding the entry into our country of non-citizens. European courts have insisted that claims about national security cannot excuse interference with the rights of would-be migrants or refugees. Our courts, in general, are far more respectful of legal claims that engage issues of national security. In Europe, judges seem to have far less patience with such claims. The European Court of Human Rights has repeatedly condemned British police practices aimed at suppressing terrorism in Northern Ireland.

We already have major disputes with European states about the best way of coping with the menace of international terrorism. Perhaps we will find more common ground in the coming years. But the very worst way of seeking that common ground, I think, would be for judges -- who have no direct responsibility for security and generally very little experience with security issues -- to take up European notions from here and from there and grope toward their own vision of common standards.

Should bin Laden or other organizers of the September 11 atrocities be subject to capital punishment? Should they be exposed to fatal attack by American military forces? European opinion holds against such responses. We cannot expect Europeans to participate in military operations of which they disapprove. We cannot expect them to adopt criminal justice measures of which they disapprove. But it may be quite important to the security of the United States in coming years that it retains the moral self-confidence to pursue its own, differing policies and priorities. The Supreme Court in Atkins seemed to acknowledge that European opinion had some claim to be considered in deciding whether American law could impose capital punishment. It is only a short step from Atkins to the notion that European opinion must be considered when our courts decide on the legality or constitutionality of American responses to the challenge of terrorism.

I don't think the American people would accept a scheme in which responsibility for American security were shared with foreign judges or foreign officials -- subject only to the shifting sympathies of American judges.. I support H.Res. 568 as a means of emphasizing this point to the Supreme Court.