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JUDICIAL RELIANCE ON FOREIGN LAW 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

DECEMBER 14, 2011 

Serial No. 112–73 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

DECEMBER 14, 2011 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 4 

WITNESSES 

Andrew M. Grossman, Visiting Legal Fellow, The Heritage Foundation 

Oral Testimony ..................................................................................................... 10 

Prepared Statement ............................................................................................. 13 

David Fontana, Associate Professor of Law, The George Washington University Law School 

Oral Testimony ..................................................................................................... 27 

Prepared Statement ............................................................................................. 29 

Jeremy Rabkin, Professor of Law, George Mason University School of Law 

Oral Testimony ..................................................................................................... 42 

Prepared Statement ............................................................................................. 44 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 6 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 7 

Prepared Statement of the Honorable Sandy Adams, a Representative in 

Congress from the State of Florida, and Chairman, Committee on the 

Judiciary, and Member, Subcommittee on the Constitution ............................ 8 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material Submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution 

Article from Legal Affairs ................................................................................ 68 

Article from the Harvard International Law Journal ................................... 73 

Article from the American Constitution Society for Law and Policy ........... 98 

(1) 

JUDICIAL RELIANCE ON FOREIGN LAW 

WEDNESDAY, DECEMBER 14, 2011 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:10 a.m., in room 

2141, Rayburn Office Building, the Honorable Trent Franks (Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Smith, King, Nadler, Scott, and 

Quigley. 

Staff present: (Majority) Holt Lackey, Counsel; Sarah Vance, 

Clerk; (Minority) Heather Sawyer, Counsel; and Veronica Eligan, 

Professional Staff Member. 

Also Present: Representative Adams. 

Mr. FRANKS. Well, good morning, and welcome to this Constitution Subcommittee hearing on ‘‘Judicial Reliance on Foreign Law.’’ 

Without objection, the Chair is authorized to declare a recess of 

the Committee at any time. And I want to extend our welcome to 

Mrs. Adams, the gentlelady from Florida, for being with us this 

morning as well. 

Today the Subcommittee renews inquiry into a topic we first explored over 7 years ago, the reliance on foreign law by American 

courts when interpreting American law. Now, as then, modern foreign law cannot tell us anything relevant about the original meaning of our Constitution. But since this Subcommittee’s last hearing 

in 2004, the trend toward the internationalization of American constitutional law has only accelerated. 

In two cases, the Supreme Court expanded the rights of juvenile 

felons based in part on how other countries punish juvenile offenders. In the 2005 Roper case, the Court reversed the death penalty 

of a 17-year-old Missouri murderer, who plotted and executed a 

plan to break into an innocent woman’s home, bind her, wrap her 

entire face in duct tape, drive her to a bridge, and throw her into 

the river. 

In holding that no offender under 18 should ever be subject to 

capital punishment, no matter how heinous the crime, the Court 

relied on international opinion and specifically the UN Convention 

on the Rights of the Child, a treaty the that United States has 

never ratified. 

Last year, the Court extended this holding and, again, cited 

international opinion and the unratified Convention on the Rights 

of the Child to find that ‘‘the standards of American society have 

2 

evolved such that’’ life without parole is now cruel and unusual 

punishment for even the worst juvenile, non-homicide defendants. 

The Court’s decision was clearly more concerned with global than 

American standards of decency, because at the time of the decision, 

37 States, the District of Columbia, and the Federal criminal courts 

all allowed life sentences for some teenage felons. 

This term, the Court will hear two cases that present the question of whether a State may impose life without parole on a juvenile who commits capital murder. Again, global practice and American practice on this question differ. The real question will be 

whether Americans or ‘‘the global community’’ decides what violates the Eighth Amendment. 

When the Committee last visited this issue, reliance on foreign 

law had only begun to crop up in a few majority opinions. Since 

that time, it has become a standard feature of the current Court’s 

majority and their Eighth Amendment jurisprudence. The 

transnational approach to constitutional law has thus moved from 

academic theory, to minority judicial philosophy, to now commanding majority support on the Court in many cases. 

President Obama’s appointments to the Supreme Court are likely 

to solidify this trend toward reliance on foreign law. In a speech 

to the ACLU of Puerto Rico, Justice Sotomayor said that ‘‘International law and foreign law will be very important in the decision 

of how to think about the unsettled issues in our own legal system,’’ particularly ‘‘as a source of ideas, informing our understanding of our own constitutional rights.’’ 

Despite a confirmation hearing conversion in which she professed 

that ‘‘American law does not permit the use of foreign law or international to interpret the Constitution,’’ Justice Sotomayor, once on 

the bench, joined the majority opinion using foreign law in Graham 

v. Florida. Disturbingly, there is reason to believe that the current Administration wants to advance transnational law beyond courts and into 

the policy arena. Law professors Harold Koh and Anne-Marie 

Slaughter were both given senior positions in the State Department. Koh is a self-described transnationalist who strongly advocates the integration of international standards into American law. 

Slaughter has advocated for global governance based on coordination between national courts on issues such as human rights. Predictably, State Department policy has followed the transnational 

views of the Department’s personnel. 

The Administration has increased American engagement with organizations like the Human Rights Council and the International 

Criminal Court that seek to internationalize various legal issues. 

This march toward transnationalism must end. America’s independence and democracy have been hard won and preserved by the 

sacrifice of generations of patriots going back to Lexington and 

Concord. The United States Constitution, with its Federal structure seen in the checks and balances, protection of individual 

rights, and commitment to representative democracy, is the greatest system for making wise and just laws that the world has ever 

known. The Constitution and laws of the United States and the 

several States are sufficient. We do not need to go abroad to 

download legal rules from other countries. 

3 

At its core, the issue is whether Americans will remain a sovereign, self-governing people or whether we will be governed by an 

elite caste of judges, imposing rules based on the supposed preferences of the so-called international community. In the words of 

Justice Scalia, ‘‘I do not believe that the meaning of our Constitution should be determined by the subjective views of five members 

of the Supreme Court and like-minded foreigners.’’ I do not know 

how it could be said better. 

And with that, I yield now to the Ranking Member of the Subcommittee, Mr. Nadler, for his opening statement? 

Mr. NADLER. Thank you, Mr. Chairman. 

We have been here before. In 2004, my Republican colleagues 

held a hearing on this issue to rail against the Supreme Court’s decisions in Lawrence v. Texas and Atkins v. Virginia. Then, as now, 

they claimed that these decisions represented an alarming new 

trend of judicial reliance on foreign law, and argued that Congress 

needs to curtail this practice. But there is nothing new and nothing 

alarming about justices educating themselves about the laws and 

practices of other nations. 

In 1804, for example, Chief Justice John Marshall wrote in Murray v. Schooner Charming Betsy—I assume that is the name of a 

ship; interesting name—that acts of Congress ‘‘ought never to be 

construed to violate the law of nations if any other possible construction’’ exists. 

In the unfortunate, and now infamous, 1857 Dred Scott decision, 

the majority cited to discriminatory practices of European nations 

that had existed at the time of this Nation’s founding, while the 

dissent referenced then contemporary European practices and 

international law. 

We may dislike or disagree with the underlying decisions in 

these or other cases, but they undoubtedly demonstrate that judicial reference to foreign law is not a new phenomenon. 

Not only is this not a new practice, it also fails to alarm my Republican colleagues, unless the Court issues an opinion with which 

they disagree. After all, the Supreme Court majority in Bowers v. 

Hardwick in 1986 upheld laws criminalizing same-sex sodomy by, 

among other things, concluding that such prohibitions have ‘‘ancient roots.’’ The sources cited for that conclusion references the 

practice of ecclesiastical courts in ancient Roman law, the English 

Reformation, and Blackstone. Where was the congressional outcry 

from my colleagues in 1986? It was non-existent until the Supreme 

Court in Lawrence had the audacity to test the Bowers Court’s assertion by, shockingly enough, looking to the laws and practices in 

England and elsewhere to show that Bowers was wrong in its citation of foreign law. 

The only thing that explains the different treatment of reference 

to foreign law in Bowers and in Lawrence is the ultimate outcome, 

not the means of getting there. 

None of us can force the courts to rule our way in every case, 

nor should we be able to do so. That is the blessing and burden 

of our constitutional system, which creates and values an independent judiciary. Efforts to attack that independence, as exhibited 

in H.R. 973, the bill introduced by our colleague from Florida, Ms. 

4 

Adams, that would ban courts from ‘‘deciding any issue on the authority of foreign law,’’ should trouble all of us. 

I suppose it is possible that H.R. 973 and like efforts are not intended to reach a judge’s references to foreign law as a non-binding, but relevant, resource, as was the case in Lawrence, and in Atkins v. Virginia, and in Roper v. Simmons, two additional cases 

often cited by those who criticize judicial reliance on foreign law. 

But Representative Adams’ use of these cases to explain the need 

for her bill in a March 2011 opinion piece indicates otherwise. 

Of course, in addition to instances where a judge may look to foreign law as non-binding but informative, courts sometimes must 

consider and be bound by foreign law in reaching a decision. For 

example, courts sometimes resolve contract claims based on choice 

of law provisions through which the parties agree to have the contract interpreted under the laws of another country, or, as is sometimes the case, for example, in prenuptial agreements or with internal church disputes, by reference to religious law. 

What might a proposal like Ms. Adams’ mean for a corporation 

doing business internationally, and, for that matter, for religious 

liberty? And what sources would be off limits to judges who, by virtue of the supremacy clause of the Constitution, Article VI, Clause 

II, are bound to interpret and enforce our treaty obligations? These 

examples illustrate that while this debate might be dismissed as 

‘‘much ado about nothing,’’ a reference to a foreign comedy that, at 

least for today, I remain free to make, the proposed solution poses 

significant and potentially unintended dangers and consequences. 

Since the founding of or constitutional system, judges have used 

many sources to test claims made by litigants and to assess the potential impact of possible rulings. These sources include law review 

articles, social science research, and the laws and decisions of 

States, other Federal circuits, and sometimes other countries. 

Congress should not be in the business of telling the courts what 

tools they get to use when interpreting our laws. On this point, 

even Justice Scalia, one of the current Court’s most outspoken critics when his colleagues reference foreign law, agrees. Speaking in 

2006 to an audience that included Members of Congress, Justice 

Scalia explained that ‘‘As much as I think that it is improper to 

use foreign law to determine the meaning of the Constitution, I 

don’t think it is any of [Congress’] business . . . If you can tell us 

not to use foreign laws, you can tell us not to use certain principles 

of logic.’’ 

It is nonsensical to argue that our judges should be less, not 

more, educated, and that they must blind themselves to certain resources that might help them to reach a fully informed judgment. 

The notion that the wisdom to be gained from looking at the laws 

and practices of other nations is an evil to be avoided, not even on 

a par with looking at a law review article written by a professor 

or any other source that a judge freely may consult, is ridiculous. 

I yield back the balance of my time. 

Mr. FRANKS. And I thank the gentleman. And I now recognize 

the distinguished Chairman of the full Committee, Mr. Smith, for 

his opening statement. 

Mr. SMITH. Thank you, Mr. Chairman. The accelerating trend of 

American judges citing and relying on foreign law threatens our 

5 

dedication to government of the people, by the people, and for the 

American people. 

Two hundred and thirty-five years ago, America declared its 

independence from Great Britain. America was founded on the selfevident truth that governments derive their just powers from the 

consent of the governed. British rule denied Americans the right to 

make their own laws, a main reason for the Revolution. One of the 

Declaration’s specific indictments was that King George II had subjected the colonists to ‘‘a jurisdiction foreign to our Constitution 

and unacknowledged by our laws.’’ 

Article VI of the Constitution 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. 

Our republic was founded on the principle that law that governs 

America should be made by Americans, and throughout our history, we have protected this heritage of self-government. 

Unfortunately, in recent decades, some courts have increasingly 

relied on foreign sources of law to interpret the meaning of the 

American Constitution. Reliance on foreign law exacerbates judicial 

activism and empowers judges to impose their own policy preferences from the bench. Judges who rely on foreign law can pick 

and choose the sources of foreign law that reinforce their own personal or political biases. 

Foreign law tells us nothing about the original meaning of the 

American Constitution and laws. For example, decisions by courts 

in Strasburg interpreting the European Convention on Human 

Rights, courts in Tehran interpreting Sharia law, or courts in Beijing applying Chinese law, should have no effect on how American 

courts interpret the Constitution. 

Citing foreign law undermines democracy and self-government. 

The American people have no control over foreign law. If we are 

to continue to govern ourselves, then foreign law should have no 

control over us. As Justice Scalia has stated, ‘‘Reliance on foreign 

law to strike down American laws renders the views of our own 

citizens essentially irrelevant.’’ 

Our system of government is based on the idea that Americans 

should make their own laws through the democratic process. This 

has made us the strongest, most prosperous Nation in the world. 

Our courts should affirm this American democratic tradition, not 

abandon it in favor of the views of the so-called international community. This is especially true when many in the international 

community do not share the same commitment to freedom, justice, 

and equality that are enshrined in the American Constitution. If 

we dilute these constitutional guarantees with foreign legal concepts, we weaken our republic. 

I appreciate the Constitution Subcommittee holding this hearing 

today, and I thank Congresswoman Sandy Adams of Florida for requesting this hearing, and look forward to working with her, Subcommittee Chairman Franks, and the other Members of this Committee who have led the effort to protect the American legal system 

from the undue influence of foreign law. 

Thank you, Mr. Chairman. I yield back. 

6 

Mr. FRANKS. And I certainly thank the gentleman. And without 

objection, the others Members’ opening statements will be made 

part of the record. 

[The prepared statement of Mr. Nadler follows:] 

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution 

Thank you, Mr. Chairman. 

We’ve been here before. In 2004, my Republican colleagues held a hearing on this 

issue to rail against the Supreme Court’s decisions in Lawrence v. Texas and Atkins 

v. Virginia. Then, as now, they claimed that these decisions represented an ‘‘alarming new trend’’ of judicial reliance on ‘‘foreign’’ law and argued that Congress needs 

to curtail this practice. 

But there is nothing new and nothing alarming about judges educating themselves about the laws and practice of other nations. In 1804, for example, Chief Justice John Marshall wrote in Murray v. Schooner Charming Betsy that acts of Congress ‘‘ought never to be construed to violate the law of nations if any other possible 

construction’’ exists. In the unfortunate and now-infamous 1857 Dred Scott decision, 

the majority cited to discriminatory practices of European nations that had existed 

at the time of this nation’s founding while the dissent referenced contemporary European practices and international law. We may dislike or disagree with the underlying decisions in these or other cases, but they undoubtedly demonstrate that judicial reference to ‘‘foreign law’’ is not a new phenomenon. 

Not only is this not a new practice, it also fails to alarm my Republican colleagues 

unless the Court issues an opinion with which they disagree. After all, the Supreme 

Court majority in Bowers v. Hardwick upheld laws criminalizing same-sex sodomy 

by, among other things, concluding that such prohibitions have ‘‘ancient roots.’’ The 

source cited for that conclusion references the practice of ecclesiastical courts in ancient Roman law, the English Reformation, and Blackstone. 

Where was the congressional outcry from my colleagues in 1986? It was non-existent until the Supreme Court in Lawrence had the audacity to test the Bowers’ 

Court’s assertion by, shockingly enough, looking to the laws and practices in England and elsewhere to show that Bowers was wrong in its citation of foreign law. 

The only thing that explains the different treatment of reference to ‘‘foreign law’’ 

in Bowers and in Lawrence is the ultimate outcome, not the means of getting there. 

None of us can force the courts to rule our way in every case, nor should we be 

able to do so. That is the blessing and burden of our constitutional system, which 

creates and values an independent judiciary. Efforts to attack that independence— 

as exhibited in H.R. 973, the bill introduced by our colleague from Florida, Ms. 

Adams, that would ban courts from ‘‘decid[ing] any issue . . . on the authority of 

foreign law’’—should trouble all of us. 

I suppose it’s possible that H.R. 973 and like efforts are not intended to reach a 

judge’s references to ‘‘foreign law’’ as a non-binding but relevant resource—as was 

the case in Lawrence and in Atkins v. Virginia and in Roper v. Simmons, two additional cases often cited by those who criticize judicial reliance on foreign law. But 

Representative Adams’ use of these cases to explain the need for her bill in a March 

2011 opinion piece indicates otherwise. 

Of course, in addition to instances where a judge may look to foreign law as nonbinding but informative, courts sometimes must consider and are bound by foreign 

law in reaching a decision. 

For example, courts sometimes resolve contract claims based on choice-of-law provisions, through which the parties agree to have the contract interpreted under the 

laws of another country or—as is sometimes the case, for example, in pre-nuptial 

agreements or with internal church disputes—by reference to religious law. What 

might a proposal like Ms. Adams’ mean for a corporation doing business internationally and for religious liberty? 

And what sources would be off-limits to judges who, by virtue of the Supremacy 

Clause of our Constitution (Article VI, Clause 2), are bound to interpret and enforce 

our treaty obligations? 

These examples illustrate that, while this debate might be dismissed as ‘‘much 

ado about nothing’’—a reference to a foreign comedy that, at least for today, I remain free to make—the proposed solution poses significant and potentially unintended dangers and consequences. 

Since the founding of our constitutional system, judges have used many sources 

to test claims made by litigants and assess the potential impact of possible rulings. 

7 

These sources include law review articles, social science research, and the laws and 

decisions of states, other federal circuits, and sometimes other countries. Congress 

should not be in the business of telling the courts what tools they get to use when 

interpreting our laws. 

On this point, even Justice Scalia—one of the current Court’s most outspoken critics when his colleagues reference foreign law—agrees. Speaking in 2006 to an audience that included Members of Congress, Justice Scalia explained that ‘‘as much as 

I think that it is improper to use foreign law to determine the meaning of the Constitution, I don’t think it’s any of [Congress’s] business . . . if you can tell us not 

to use foreign laws, you can tell us not to use certain principles of logic.’’ 

It is nonsensical to argue that our judges should be less, not more, educated and 

that they must blind themselves to certain resources that might help them reach 

a fully informed judgment. The notion that the wisdom to be gained from the laws 

and practices of other nations is an evil to be avoided, not even on par with a law 

review article written by a professor or any other source that a judge freely may 

consult, is ridiculous. 

I yield back the balance of my time. 

[The prepared statement of Mr. Smith follows:] 

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 

The accelerating trend of American judges to cite and rely on foreign law threatens our dedication to government of the people, by the people and for the American 

people. 

Two-hundred and thirty-five years ago, America declared its independence from 

Great Britain. America was founded on the self-evident truth that governments derive ‘‘their just powers from the consent of the governed.’’ 

British rule denied Americans the right to make their own laws, which was one 

of the main reasons for the revolution. One of the Declaration’s specific indictments 

was that King George II had subjected the colonists to ‘‘a jurisdiction foreign to our 

constitution, and unacknowledged by our laws.’’ 

Article VI of the Constitution 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.’’ 

Our Republic was founded on the principle that the law that governs America 

should be made by Americans. And throughout our history, we have protected this 

heritage of self government. 

Unfortunately, in recent decades some courts have increasingly relied on foreign 

sources of law to interpret the meaning of the American Constitution. 

Reliance on foreign law exacerbates judicial activism and empowers judges to impose their own policy preferences from the bench. Judges who rely on foreign law 

can pick and choose the sources of foreign law that reinforce their own personal or 

political biases. 

Foreign law tells us nothing about the original meaning of the American constitution and laws. For example, decisions by courts in Strasbourg interpreting the European Convention on Human Rights, courts in Tehran interpreting Sharia law or 

courts in Beijing applying Chinese law should have no effect on how American 

courts interpret the Constitution. 

Citing foreign law undermines democracy and self-government. The American 

people have no control over foreign law. If we are to continue to govern ourselves, 

then foreign law should have no control over us. 

As Justice Scalia has stated, reliance on foreign law to strike down American laws 

renders ‘‘the views of our own citizens essentially irrelevant.’’ 

Our system of government is based on the idea that Americans should make their 

own laws through the Democratic process. This has made us the strongest, most 

prosperous nation in the world. 

Our courts should affirm this American democratic tradition, not abandon it in 

favor of the views of the so-called ‘‘international community.’’ This is especially true 

when many in the ‘‘international community’’ do not share the same commitment 

to freedom, justice and equality that are enshrined in the American Constitution. 

If we dilute these constitutional guarantees with foreign legal concepts, we weaken our Republic. 

I appreciate the Constitution Subcommittee holding this hearing today. I thank 

Congresswoman Sandy Adams of Florida for requesting this hearing and look forVerDate Aug 31 2005 11:48 Feb 15, 2012 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6621 H:\WORK\CONST\121411\71624.000 HJUD1 PsN: DOUGA
8 

ward to working with her, Subcommittee Chairman Franks and the other members 

of this Committee who have led the effort to protect the American legal system from 

the undue influence of foreign law. 

[The prepared statement of Ms. Adams follows:] 


71624A-1.eps
9 

Mr. FRANKS. I would like to welcome our witnesses here this 

morning. And our first witness is Mr. Andrew Grossman. He is a 

visiting legal fellow in the Heritage Foundation’s Center for Legal 

and Judicial Studies, where he researches and writes about constitutional issues. In addition to his work at Heritage, Mr. Grossman is a litigator in the Washington office of the global law firm 

Baker & Hostetler. 


71624A-2.eps
10 

Our second witness, Professor David Fontana, is a professor at 

the George Washington University Law School where his research 

focuses on constitutional law, comparative constitutional law, and 

the legal profession. Before coming to GW, Professor Fontana 

clerked for the Honorable Dorothy W. Nelson of the U.S. Circuit of 

Appeals for the Ninth Circuit. 

Our third and final witness, Professor Jeremy Rabkin, is on the 

faculty at George Mason University School of Law, where he joined 

in 2007 after 27 years at Cornell University. His scholarship and 

several of his books focuses on issues of national sovereignty. He 

holds a Ph.D. from the Department of Government at Harvard University, and currently serves on the board of directors of the United 

States Institute of Peace. 

And we want to, again, welcome all of you here today. And each 

of the witnesses’ written statements will be entered into the record 

in its entirety. I ask that each witness summarize his testimony in 

5 minutes or less. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you will have 1 minute to conclude your testimony. When the 

light turns red, it signals that the witness’ 5 minutes have expired. 

And before I recognize the witnesses, it is the tradition of this 

Subcommittee that they be sworn. So, if you would please stand. 

[Witnesses sworn.] 

Mr. FRANKS. Please be seated. And I thank you, and I recognize 

our first witness, Mr. Grossman, for 5 minutes. 

TESTIMONY OF ANDREW M. GROSSMAN, VISITING LEGAL 

FELLOW, THE HERITAGE FOUNDATION 

Mr. GROSSMAN. Mr. Chairman, Ranking Member Nadler, Members of the Subcommittee, thank you for holding this hearing 

today. 

My written testimony presents a taxonomy of the circumstances 

in which it is appropriate and inappropriate for U.S. Federal courts 

to apply foreign law, and describes the enormous challenges that 

courts face in attempting to even ascertain the substance of foreign 

law, much less to apply it correctly. But in the interest of brevity, 

I will skip the whole taxonomy this morning and make just three 

points. 

First, the present practices of foreign nations, international organizations, including laws and treaties, are simply irrelevant to interpreting and applying the United States Constitution. The Constitution should be interpreted according to its original meaning. It 

is contrary to the Constitution’s own supremacy clause for the 

courts to elevate foreign statutes or court decisions to the supreme 

law of the land, superior to U.S. statutory law, and even the constitutional text. It is perverse. 

Reliance on foreign laws is also anti-democratic. Judge Richard 

Posner has put this point particularly well. He wrote, ‘‘Judges in 

foreign countries do not have the slightest democratic legitimacy in 

the U.S. context. The votes of foreign electorates, the judicial conformation procedures, if any, in foreign nations, are not events in 

our democracy. To cite foreign decisions in order to establish an 

international consensus that should have weight with U.S. courts 

11 

is like subjecting legislation enacted by Congress to review by the 

United Nations’ General Assembly.’’ 

Another problem is that the Supreme Court is simply incompetent at determining what it calls the climate of international 

opinion. The Court’s typical approach to applying foreign law has 

been to count the noses of foreign nations on any particular issue. 

It does this poorly. For example, capital punishment is popular in 

many countries where political actors have actually abolished it. 

Another example, Supreme Court justices have taken at face value 

self-serving claims by the Soviet Union and Zimbabwe concerning 

their penal system’s humane practices. This naivete ́ does not inspire confidence. 

Finally, one cannot help but wonder whether the decisive factor 

governing the citation of foreign law is simply, as the Supreme 

Court often puts it, ‘‘our own judgment.’’ What Justice Scalia has 

said about the citations of legislative history applies equally here. 

The trick is to look over the heads of the crowd and pick out your 

friends. 

When the Court does cite foreign law, it picks and chooses its 

friends, mostly in old Europe. The Court also picks and chooses 

those instances in which it considers foreign law at all. In areas 

where foreign law is more conservative than U.S. constitutional 

law, such as separation of church and State and the admission of 

illegally obtained evidence, foreign law is apparently irrelevant. 

The reason may be that it would not help reach the justices’ preferred outcome. 

My second point is that the use of foreign law undermines federalism. In every case but one where the Court has decreed that 

a particular punishment is constitutionally impermissible, the losing party has been a State. To be clear, in each of these cases, the 

Supreme Court struck down a State law or practice in part because 

it conflicted not with any Federal statute or explicit limitation on 

State power in the Constitution, but because it conflicted with foreign laws and practices that, according to the Court, somehow have 

the force and effect of Federal constitutional law. 

Some justices even consider foreign law to be directly relevant to 

interpreting the 10th Amendment’s limitations on Federal power. 

In Prince v. United States, the Supreme Court held that the Federal Government could not commandeer State officials to enforce 

Federal gun laws. Justice Breyer dissented on the grounds that 

they do things differently in Germany and Switzerland. But, of 

course, we do things differently here. That was the point of our 

written Constitution. 

International law, in the form of expansive treaties, presents a 

similar threat to federalism. In a case that is pending now in the 

Third Circuit, the Federal Government claims that the treaty 

clause power is not subject to the limitations of the 10th Amendment. Indeed, some clever law professors, have suggested that Congress could reenact the gun control provisions struck down in 

Prince and Lopez by tying them to one or another broadly worded 

treaty. This is a radical position, one that reaches far beyond the 

Supreme Court’s holding in Missouri v. Holland, and yet it is the 

position of the Obama Administration. 

12 

Frankly, it is not inconceivable that foreign and international 

law will play some role in the Supreme Court’s consideration of 

currently pending challenges to the Patient Protection and Affordable Care Act’s individual mandate. European countries, after all, 

are saddled with national health care systems, and some law professors read the UN Universal Declaration of Human Rights to 

make medical care a human right that the United States government has an obligation to enforce on its citizens. I will bet a couple 

of justices would go along with this. 

My third point is that it is not always judges that are to blame 

for these problems. Sometimes it is Congress that mandates the 

use of foreign and international laws. Two quick examples. The 

alien tort statute gives Federal courts jurisdiction over cases alleging violation of the law of nations, and the Lacey Act criminalizes 

violation of the laws concerning wildlife of every single country in 

the world. These laws put Americans at risk of unjust prosecution 

and conviction through the difficulty of ascertaining foreign law 

and complying with it. Gibson Guitars, I think, is a recent victim 

of this phenomenon. 

Let me conclude with four recommendations for Congress. First, 

Congress should concede limits on the treaty clause power so as to 

protect our system of federalism and to protect Americans’ rights. 

Second, Congress should reform or repeal the alien tort statute. 

Third, Congress should reform the Lacey Act and other acts that 

incorporate foreign or international law. If a law imposes requirements on Americans, those requirements should be considered by 

Congress or an agency, and they should be spelled out in the law. 

There should be no outsourcing. Fourth, where U.S. statutes do incorporate foreign or international law, Congress should provide administrative safe harbors by which law-abiding citizens can obtain 

a binding opinion on how they may comply with the law and avoid 

punishment. 

Again, I thank the Committee for the opportunity to offer these 

remarks, and I look forward to your questions. 

[The prepared statement of Mr. Grossman follows:] 

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Mr. FRANKS. Well, thank you, Mr. Grossman. 

And, Professor Fontana, you are now recognized, sir, for 5 minutes? 

TESTIMONY OF DAVID FONTANA, ASSOCIATE PROFESSOR OF 

LAW, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. FONTANA. Thank you for having me. Chairman Franks, 

Ranking Member Nadler, Members of the Subcommittee, thank 

you for having me today to discuss this very important issue. I 

want to make three quick points summarizing my testimony. 

First of all, banning entirely the use of foreign law in American 

Federal courts in all cases would be very damaging to American 

business. Second, banning entirely all foreign law in all cases in 

American courts would hurt courts in their attempt to answer the 

questions that come before courts in deciding constitutional cases. 

And, third of all, and very importantly I think, there is quite a consensus across ideological lines and over the history of the Supreme 

Court that some use of foreign law in some cases is perfectly appropriate within our constitutional jurisprudence, and within our constitutional traditions. 

So, first of all, I want to emphasize the point separate from the 

use of foreign law in interpreting the Constitution. Foreign law 

plays a central role in allowing American corporate to compete in 

a global economy. As we know, American businesses compete internationally now, and as part of that, they have to have the freedom 

of contract. They have to be able to enter into contracts with companies overseas, who, quite often, will want there to be some part 

in the contract that allows the disputes to be settled using the law 

of some country other than the United States. 

My concern about banning foreign law in Federal courts is that 

this would prevent this from happening, which would really put 

American corporations at a disadvantage in making contracts and 

engaging in transactions with foreign companies. 

Second of all, in the constitutional context, foreign law is quite 

often helpful factual evidence to help courts decide the constitutional issues that all people agree they must decide. So, the original understanding of the Constitution and the text of the Constitution, earlier cases that courts have decided, get you part of the way 

to an answer in a judicial decision, but they do not get you all the 

way. In every case that raises complicated constitutional issues, 

there are questions about whether or not what the government is 

doing is the appropriate means to further an appropriate ends. And 

it is long established across ideological lines that in deciding these 

issues, Federal courts look to lots of different kinds of evidence. 

They look to State laws, and often they look to foreign laws. If they 

are trying to decide if there is another policy way of pursuing an 

important goal, it is helpful to know what other policy options 

there are out there. If they want to know if this policy goal will 

actually succeed, it is help to see whether in States in or in other 

countries whether this policy has proven successful. 

Finally and briefly, but importantly, I think that there has been 

a misunderstanding in this discussion in all different circles about 

how kind of controversial this issue has been over history and on 

the current Court. 

28 

So, Justice Scalia, who is often cited as the strong proponent or 

strongest opponent of using foreign law, is on the record as saying 

that foreign law is helpful in deciding constitutional cases and 

making factual determinations. Indeed, he cited to foreign law in 

his dissent in Lawrence v. Texas. He cited to foreign law in his 

opinion just last year in a gun rights case. Justice Alito has cited 

to foreign law. Justice Thomas has cited to foreign law. And, again, 

this is not new. The Federalist Papers reference several dozen foreign countries as part of their understanding of the new Constitution. In deciding Marbury v. Madison, a case we all know that established the American tradition of judicial review, Chief Justice 

John Marshall cited to British constitutional practice, not at the 

time of the founding, but at the time of Marbury. 

So, my concern about banning foreign law entirely in Federal 

courts is that this would make illegal immediately, as a matter of 

Federal law, a practice that was engaged in by people from John 

Marshall to Antonin Scalia. And I think we should be hesitant 

about banning something that has been so established across so 

many ideological lines over such a long history. 

Thank you. 

[The prepared statement of Mr. Fontana follows:] 

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Mr. FRANKS. We thank the gentleman. 

And, Professor Rabkin, you are recognized for 5 minutes, sir? 

TESTIMONY OF JEREMY RABKIN, PROFESSOR OF LAW, 

GEORGE MASON UNIVERSITY SCHOOL OF LAW 

Mr. RABKIN. Thank you. Let me try to summarize my testimony 

and also respond to some things that have been said. 

The first general point I want to make is, I associate myself with 

my fellow witnesses and with Mr. Nadler and others in saying that 

I think there are a lot of legitimate uses of foreign law in some contexts. Mr. Nadler mentioned, I think rightly, that you can go back 

to the Marshall court, and they cite, as in the Charming Betsy 

case, foreign decisions. Absolutely right. That case was about the 

law of nations, even in the quote that you mentioned. If we are 

talking about the law of nations, we want to know what other nations are doing, the law of nations, meaning international law. Yes, 

of course. I think Professor Fontana cited the cases where there is 

a contract with some overseas partner, and there is some stipulation about applying foreign law. Yes, that is fine. 

So, I want to emphasize this. I think the point that really should 

concern people is not that somewhere in some context there is some 

reference to foreign law. The proble, is interpreting the United 

States Constitution with reference to foreign practice. That is the 

first point I want to clarify. 

The related second point, the reason why people are upset about 

this, these are not just casual references. It is not just, ‘‘Oh, well, 

maybe, possibly that is illuminating.’’ There is a campaign to organize the world this way. When you have human rights treaties, either those treaties take precedence over national law, or it is really 

hard to understand what is it you are talking about. If it is merely 

just one of a 100 different commitments which you can override at 

will, then international human treaties begin to look pointless. 

So, of course, there are a lot of academics, and now there are a 

lot of political figures, and now finally you have, you know, courts 

and authorities in Europe saying, ‘‘Well, actually there should be 

something like a global constitution, the core of which would be 

human rights protections which apply everywhere.’’ It is that context that makes people worry about appeals to what is being done 

in foreign countries in the area of human rights, because the implication is we all should be doing more or less the same thing under 

the heading of human rights. 

So, now I would like to make two responses to that before I end 

this initial statement. The first is—this is going to make people 

crazy, and it is already making people crazy. It is really shocking 

to me when you go on to the Internet just how much hysteria there 

is about this. And I think a lot of it, it is certainly ugly. A lot of 

it is really worrisome. But people are reacting to what they see as 

a kind of threat, which is that somehow our Constitution is being 

taken away. 

There is an easy way of calming a lot of this, which is to just 

say firmly and clearly, ‘‘Well, we are not going to do that. Our Constitution will remain our Constitution. We will not give authority 

to what is being done in foreign countries or even in UN or international forums of other kinds when it comes to interpreting our 

43 

Constitution.’’ I think it would calm people, and calm is good in 

itself. It is particularly valuable for things which are actually important. You do not want people getting crazy about what the Constitution means. 

The last point I want to make is, you could say if you want to, 

well, there are always hysterical people and the Internet. It gives 

them more openings. Talk radio does, too. We can just live with 

that. Okay, fine. But we should focus on a couple of issues, and I 

mentioned one in my testimony, and I’ll mention it again, which is, 

we have applied international standards in interpreting the Eighth 

Amendment ban on cruel and unusual punishment. Why only the 

Eighth Amendment? Why not other amendments? Why not the 

First Amendment? The United States is an outlier in the world 

when it comes to protection of free speech. Most of our closest 

international partners, that includes Canada, that includes every 

country in Western Europe, I think a lot of countries in Latin 

America, think that actually free speech should be more constrained. There is now an international campaign at the UN. Every 

year the United Nations General Assembly passes a resolution saying there need to be bans on Islamaphobic speech and other kinds 

of speech that criticize other religions. A lot of countries think, 

well, yes, we can accommodate you on that. We need to restrain 

anti-Islamic speech and other kinds of anti-religious speech or hate 

speech against particular groups. This is an accepted practice in a 

lot of other countries. Yes, I know, but do we want to do that here? 

I think that is a real serious question, and it is becoming a somewhat urgent question. 

It is not helpful in answering that question to say, ‘‘Oh, well, we 

have the First Amendment,’’ when people are telling us provisions 

of our Constitution have to be interpreted in the light of what foreign countries think parallel guarantees mean in their countries. In 

Europe and Canada, they have guarantees of free speech. They 

think free speech means free—unless you offend some particular 

religious or ethnic group. I do not think we want to go down that 

road, but I think it would be very helpful in calming people and 

also in stabilizing our law to say what foreigners think about free 

speech is not a guide to what our First Amendment means. 

And it would be helpful, I think—I will wrap up with this—I am 

not actually in favor of Representative Adams’ measure, as I understand it, to say there should be no references to foreign law anywhere. But I think it would be very worthwhile to have the House 

say we do not think the Constitution should be interpreted in the 

light of foreign precedents or international human rights law. 

Thank you. 

[The prepared statement of Mr. Rabkin follows:] 

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Mr. FRANKS. Thank you, Professor Rabkin, and I thank all of you 

for your testimony. And I will now begin the questioning by recognizing myself for 5 minutes. 

Professor Rabkin, I will begin with you. Your testimony was very 

compelling. And it has been noted today that even conservative justices, like Mr. Scalia and Mr. Thomas, have cited foreign laws in 

the course of their careers. And, of course, I would like for you to 

address that. It seems to me that there is some phraseology here, 

and I think you addressed it very well that it is one thing to cite 

some indication of foreign law as a part of your narrative, another 

thing to authorize your decision and your interpretation of the Constitution and gain its authority from that foreign law. And I think 

it is a key issue here to try to separate those things. 

So, what is the difference between an appropriate citation in a 

foreign law and an inappropriate reliance on it? Again, I think Ms. 

Adams has a good angle here. She talks about ‘‘authorized’’ rather 

than ‘‘based on,’’ and I think that is, at least, a good distinction. 

Can you tell me what you think the difference an appropriate citation of foreign law and an inappropriate reliance on it would be? 

Mr. RABKIN. Well, let me start with the easy distinction. If a case 

is about international law, we call it international for a reason. It 

involves other countries. Particularly if it is a case about a treaty, 

yes, then it is very worthwhile to know what our treaty partners 

think they have committed to when we try and figure out what we 

are obligated to do. That is the easy one. 

I think it is quite appropriate when you look at provisions in the 

United States Constitution to look at what English law was at that 

period when the framers were using expressions which they were 

borrowing from English law. That is another easy one. 

I want to repeat what I said. I think in a different context, no 

one would pay attention to this. It is not that being foreign is a 

taint. That is not it at all. I mean, of course you could learn something from a lot of different sources, from the Bible, from Shakespeare, from all kinds of sources. But when people are saying, ‘‘Yes, 

we are building up a body of transnational human rights law,’’ then 

I say, no, I do not want to be tangled up in a transnational project 

which involves basically rewriting our Bill of Rights. 

And if I cannot say, this is exactly the line, then I would say, 

people are worried about this, then let us back off and let us actually restrain ourselves more than we might otherwise feel was necessary so that we avoid even coming up to this line, when we are 

having trouble deciding exactly where that line should be. 

I would say when it comes to guarantees in the Bill of Rights, 

I think that is the simplest way of putting my position. When it 

comes to guarantees in the Bill of Rights, we should not be distracting ourselves with what foreigners think these things mean in 

their very different legal contexts. 

Mr. FRANKS. Well, thank you, sir. And, Mr. Grossman, I will ask 

you, what does it mean for our Federal structure when the Supreme Court puts greater emphasis on what a majority of foreign 

countries think about a practice than it puts on the laws that a 

majority of the U.S. States have already enacted? 

Mr. GROSSMAN. Well, two quick thoughts with respect to that. 

When the Court’s jurisprudence, particularly under the Eighth 

57 

Amendment concerning evolving standards of decency, cites to foreign law and tries to discern a consensus among foreign states that 

somehow governs U.S. practices, it is directly contrary to both the 

mechanism for constitutional change that is within the Constitution itself, as well as the division of power specified by the Constitution, and sort of reified by the 10th Amendment. 

The second point would be, it is not apparent to me that it is actually appropriate either that the Court should be citing or trying 

to discern a trend among the States in determining evolving standards of decency. I am not sure that evolving standards of decency 

properly reflects the original understanding of the Eighth Amendment. If a State is doing something, I think, that was understood 

to be permissible at the time of the ratification of the Eighth 

Amendment, then that is something that, it may or may not be 

good policy, but it is something that is within the State’s rights to 

do. 

Mr. FRANKS. Thank you. Let me go then to Professor Fontana for 

a moment. I just wanted to make sure I understand, and, again, 

that is a leading question, and I will give you the head’s up on it. 

Based on your testimony today, is it your opinion that courts 

should decide even in the policy arena? 

Mr. FONTANA. I am sorry, I missed the question. 

Mr. FRANKS. You mentioned some of the latitude the courts had. 

Based on your testimony today, is it your opinion that courts 

should also decide in some areas of policy? 

Mr. FONTANA. I do not feel that in deciding cases, the Federal 

courts need to look to policy considerations. However, as a matter 

of constitutional doctrine, it is fairly settled law that in deciding 

constitutional issues, justices and judges on the lower courts will 

look to how policies have played out in practice as a way of seeing 

what sorts of constitutional implications there are to how these 

policies have played out. 

So, they are not looking at them to decide whether this is a good 

policy or a bad policy. They are looking at them to see whether or 

not there might be other policies which infringe less on constitutional rights, and which promote the goals of Congress better. And 

this is a practice that, I think, is established for a long time and 

agreed to by Justice Thomas, all the way to Justice Ginsberg. 

Mr. FRANKS. Well, thank you. And I now recognize the Ranking 

Member for his questioning? 

Mr. NADLER. Professor Rabkin, you just said that you did not 

support the language in the bill, H.R. 973. Professor Fontana, do 

you? What do you think of that? 

Mr. FONTANA. I agree that I think the language is potentially 

over broad. The previous times that this Subcommittee has met to 

consider this issue, the language was typically limited to just interpreting the Constitution, which, I believe, Professor Rabkin and 

Mr. Grossman indicated are their concerns. 

Now, while I disagree with their concerns on this legislation, I 

think that there would be even broader agreement that banning 

foreign law to decide any issues in all Federal courts would be 

overly broad. 

Mr. NADLER. Thank you. Now, Professor Fontana and Rabkin, 

forgetting about the questions of interpreting treaties, and laws, 

58 

and things like that, if this is about the use of foreign law only as 

an informative resource, that is a binding question on a treaty or 

something. If the problem is only that courts look to foreign law as 

a potentially informative resource, should we also ban reference to 

other non-binding resources, like law reviews, or perhaps only 

those in foreign law journals, to social science research? Do really 

believe that these sources are less harmful and more informative 

than what might be gained from review of how judges of other nations have treated similar issues? Professor Rabkin, and then Professor Fontana? 

Mr. RABKIN. No. 

Mr. NADLER. Microphone. 

Mr. RABKIN. The judicial committee of the House of Lords used 

to have this rule that they would not cite legal scholarship by a 

scholar who was still alive, which I thought was a very salutary 

rule, which I—— 

Mr. NADLER. That might lead to murder cases. [Laughter.] 

Mr. RABKIN. Well, for one reason or another, I do not know if 

that was the reason, they abandoned that restraint. I would say 

the difference is there are a lot of different law professors, and no 

one really takes very seriously the idea that all of them are working together to establish the positions of the United Law Professors. 

Mr. NADLER. And all foreign courts are working together? 

Mr. RABKIN. Well, in fact, people do talk about this, and even the 

judges sometimes talk about this. You want to show respect for the 

work of judges—— 

Mr. NADLER. Okay. 

Mr. RABKIN [continuing]. Who are in the same area, right? And 

people do talk about building up a common body of law. 

Mr. NADLER. Okay, thank you. 

Mr. RABKIN. If that is the project, then I do not want to—— 

Mr. NADLER. Thank you. Professor Fontana? 

Mr. FONTANA. Yes, thank you for the question. I mean, as a law 

professor, I should say that I think that writings of law professors 

are incredibly important. But I think that there is even more relevance, I think, to the decisions of foreign courts on relevant 

issues, because, as I said, part of the issues that courts are deciding in constitutional cases is, are there alternative ways of pursuing these goals? How will these things worked in practice? 

It is the factual evidence, the evidentiary kind of import of this 

foreign law evidence that makes it relevant in courts. It is not because it is foreign law; it is because it is evidence in cases that 

courts need to decide the issues before them. 

Mr. NADLER. Thank you. Again, Professors Rabkin and Fontana, 

what do you think the penalty for a judge who fails to follow this 

prohibition ought to be? For example, how do you enforce this bill? 

Mr. RABKIN. Excellent question. 

Mr. NADLER. Thank you. 

Mr. RABKIN. I do not think it could constitutionally be enforced, 

and I think you have quoted Justice Scalia. I often agree with Justice Scalia. I think that I agree with the position that he took on 

this issue. 

Mr. NADLER. That Congress should not legislate this. 

59 

Mr. RABKIN. That Congress cannot tell judges, you may not decide on this basis, when it comes to interpreting the Constitution. 

I think that is a fair point. 

Mr. NADLER. Thank you. Professor Fontana? 

Mr. FONTANA. Yes, thank you for the question. I think what is 

significant about this legislation is that it is, in fact, legislation. 

The earlier hearings were about resolutions, and even those Justice 

Scalia thought raised significant constitutional problems. So, I 

think it might be unconstitutional on its face, and part of the reason is that it would be very difficult, if not impossible, for the 

Court. 

Mr. NADLER. Thank you. Professor Rabkin, you stated that the 

Supreme Court is ‘‘persistent in its practice of citing foreign law.’’ 

And you cite two death penalty decisions, Roper v. Simmons, 2005, 

and Graham v. Florida. Testifying at the hearing on this issue convened in this Committee in 2004, you acknowledged that the Supreme Court had not treated foreign sources as binding authority—— 

Mr. RABKIN. Yes. 

Mr. NADLER [continuing]. In Atkins or in Lawrence. Are you 

claiming that they treated foreign law as a binding rather than an 

informative resource in Roper or in Graham? And do you have any 

other examples of the supposedly persistent practice that has occurred since the 2004 hearing? 

Mr. RABKIN. So, just to be clear, I do not believe a single one of 

those cases turned on—— 

Mr. NADLER. Okay. 

Mr. RABKIN [continuing]. A citation to foreign law. 

Mr. NADLER. Thank you. And this persistent practice, can you 

cite any other examples of the supposedly persistent practice since 

our 2004 hearing, besides those two cases? 

Mr. RABKIN. Not in a majority opinion. 

Mr. NADLER. So, in other words, this persistent developing pattern that we have to be aware of was in two cases since 2004. 

Mr. RABKIN. Yeah. 

Mr. NADLER. Okay. This is my last question. Courts considering 

this issue sometimes cited the Bible in their decisions. The Arizona 

Supreme Court did so in a decision upholding its sodomy laws, 

State v. Bateman, 1976. Should we believe that they decided that 

case based on Leviticus and Deuteronomy? If they consider the 

Bible binding on them, was that unconstitutional in itself? Should 

we be equally outraged by these historical references you suggest 

we should be by references to foreign law in other cases? After all, 

Leviticus is not a domestic legal document duly passed by Congress. Professor? 

Mr. RABKIN. Yes. So, my colleague here, Professor Fontana, is always thanking you for the question. I really want to thank you for 

this question. 

This is a very good analogy if you think we are citing foreign 

practice the way they sometimes cite something from the Bible as 

a sort of passing reference. If there were an organized campaign to 

say we need to Christianize American law or we need to coordinate 

law with the higher law of the Bible, then I think people would be 

a lot more upset about these passing references to the Bible. 

60 

Mr. NADLER. So, basically you are saying the problem is that 

there is an organized campaign. But you also said there have been 

no instances of this since 2004, other than those two decisions. So, 

where is the organized campaign? 

Mr. RABKIN. Look—this, is again a very helpful question and I 

thank you for it. I think what Chairman Franks was suggesting, 

was some sharp line between when you rely on it as the basis of 

the decision, and when you just mention it. It does not work like 

that in practice. What you do if you are trying to develop a doctrine 

is you sort of insinuate it. You refer to it without quite basing your 

decision on that. Chief Justice Marshall did this in a lot of famous 

cases. You put something on the table, you give it prominence, but 

you find some other way of deciding this particular case. And over 

time, this builds up a structure and people forget that that was not 

actually the basis of the decision, and they get used to the idea of 

it. Oh, yes, we do, for example, have the dormant commerce clause 

doctrine, which Marshall did not rely on in Gibbons v. Ogden, but 

put on the table. 

That is how courts develop controversial law. And I am concerned about their developing controversial law in the future in 

this area. 

Mr. FRANKS. I thank the gentleman, and I now recognize the 

gentleman from Iowa, Mr. King. 

Mr. KING. Thank you, Mr. Chairman, and I thank the witnesses 

for your testimony. A few things I am curious about, and I think 

one of them, if I can direct my first question to Professor Fontana, 

would be a little bit on the side, a parallel topic, not directly the 

subject of the testimony here. 

But if the United States enters into a treaty or an agreement 

with a foreign country or an entity broader than the United States, 

are the constitutional protections that are in the Bill of Rights, as 

Professor Rabkin referenced, are they paramount over the decision 

of that treaty? Can the Senate ratify a treaty that diminishes the 

rights of Americans? 

Mr. FONTANA. I believe there is a Supreme Court case from several decades ago called Reid v. Covert, which says that there are 

Bill of Rights limitations on treaties duly entered into under the 

supremacy clause, yeah. 

Mr. KING. Bill of Rights limitations on that, meaning that the 

Bill of Rights restrains, protects American citizens regardless of the 

decision? Did I hear that right? 

Mr. FONTANA. So, if there is a treaty validly entered into, it cannot violate the First Amendment. It cannot violate the Fourth 

Amendment, and so on. 

Mr. KING. Okay. And if it did, then how would that treaty be regarded? 

Mr. FONTANA. I would imagine that a court would strike down 

whatever was being done pursuant to the treaty. 

Mr. KING. So, that is good news to me. If my constitutional 

rights, particularly those Bill of Rights constitutional rights, happen to be violated by a treaty that perhaps this Administration 

could be entering into, then there would be an opportunity to, if 

one had standing, to litigate that all the way to the Supreme 

61 

Court, for example, and to be able to see a treaty such as that invalidated by the Court. 

Mr. FONTANA. I do not know that necessarily the entire treaty 

would be invalidated, but just the parts of the treaty that implicate 

Bill of Rights concerns. 

Mr. KING. Thank you very much. Professor Rabkin? 

Mr. RABKIN. I agree that that is what ought to happen. I do not 

think we can be totally confident that that is what would happen. 

Take the case that Professor Fontana mentions, Reid v. Covert. The 

opinion that he is referencing did not get five votes on the Supreme 

Court; it got only four. And a lot of people at the time were saying, 

‘‘Well, I do not know, not exactly, what it means.’’ 

This doctrine should be the law, and there are a lot of law review 

articles saying, ‘‘Oh, yes, the Bill of Rights must trump a contrary 

treaty.’’ It is not absolutely clear from the case law that that is 

what the Supreme Court thinks. 

And if I can just add one other thing, I think the real concern 

here is not that the Supreme Court would say, ‘‘Oh, too bad, the 

Bill of Rights has been superseded by a treaty.’’ The concern is 

rather that the Court would say, ‘‘We have to reinterpret the Bill 

of Rights so that it can be compatible with international commitments, particularly international commitments in the area of 

human rights, which, after all, concern human rights,’’ so they are 

good, and they should take priority, right? 

And sincere, serious people who are not involved in a conspiracy 

have conflicting views about what is the right human rights position on, for example, hate speech. And the UN position, and this 

goes back decades, is you not only have the right to free speech, 

but you also have the right to be protected from hate speech. Both 

of those are rights, and that means actually the international 

human rights position is you should have less free speech protection than Americans have. 

I do not think we can say with confidence, particularly if the Supreme Court is going around reinterpreting the Constitution to 

make it consistent with international trends—— 

Mr. KING. Where is my protection from hate speech in the Constitution? Where is my protection from hate speech in the Constitution? 

Mr. RABKIN. We do not have protection from hate speech. 

Mr. KING. And so, I ask the question for this point then, that it 

is possible in the explanation that you have delivered here, that as 

we would see those clearly defined rights that are primarily defined 

in the bill of rights, could potentially be compromised and eroded 

by a reinterpretation of them by making accommodations to international norms. And those international norms might impose a prohibition on hate speech that limits our freedom of speech, or a prohibition on gun rights that limits our gun rights. 

Mr. RABKIN. This is what people worry about. And whoever says, 

‘‘Oh, you have nothing to worry about,’’ I think is not paying attention. 

Mr. KING. And so, I will maybe turn to Mr. Grossman and ask 

you about this. We have this Constitution that I think was clearly 

defined, and yet it gets redefined over the centuries. And the idea 

that we are dealing with a—I will phrase it this way. If there is 

62 

a case before the Court, do the opinions of the American people 

matter in the evaluation of that? Does public opinion matter? Does 

a consensus matter? Do the American people really get to weigh in 

on that if the Supreme Court is sitting up there listening to a case? 

Mr. GROSSMAN. Well, gosh, I hope not. You know, the idea that 

the Supreme Court should interpret the Constitution or its statutory law on the basis of poll results or something like that is troubling, but that might actually even be a better basis and a more 

legitimate basis for decision than citing the opinions of foreign 

elites, whose views do not even accord with the views of their own 

people. 

Mr. KING. You actually borrowed my last question. But I would 

ask consent to ask one concluding question. 

Mr. FRANKS. Without objection. 

Mr. KING. I thank the Chairman for that, indulging me, because 

I really wanted to turn this then to Professor Fontana and ask if 

you agree with the response of Mr. Grossman, but follow that with 

this: at least in theory, public opinion in America does not matter 

when it comes to a legal opinion of a panel of justices. And so then, 

how can a global consensus have impact on a court’s decision if 

public opinion in America does not? 

Mr. FONTANA. I believe in the Eighth Amendment context, the 

Supreme Court has long held that because the Eighth Amendment 

bans cruel and unusual punishment, that surveying the practices 

of the States is considered relevant. And looking to foreign laws is 

relevant to determine if it is unusual because there is a lot of reason to believe, going back to when the Eighth Amendment was 

adopted, that the founding fathers wanted the Eighth Amendment 

to be interpreted going forward by looking to whether or not a particular punishment was actually unusual. 

Mr. KING. We have 37 States that supported a policy that was 

overturned by the Court because of an international consensus. 

How can a perceived international consensus trump the will of the 

people? 

Mr. FONTANA. I do not believe that it should. 

Mr. KING. But it did. 

Mr. FONTANA. Justice Kennedy in Roper said that the foreign law 

can provide ‘‘respected and significant confirmation.’’ Now, there 

are questions about whether or not he got the domestic law part 

right, but the analysis in Roper says that you only turn to see 

whether or not a practice is unusual around the world after you 

first determine that it is unusual domestically. 

Mr. KING. Thank you very much. Thank you, Mr. Chairman. I 

yield back. 

Mr. FRANKS. And I thank the gentleman. I now recognize the 

gentleman from Illinois, Mr. Quigley. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Mr. Grossman, I do not want you to feel neglected here. And I 

do not want to paraphrase it and get it wrong, Professor, but I 

think what he was getting to is it is difficult to find the bright line 

when this is okay. I think, Professor, there is some legitimate uses 

of foreign thought, judicial thought. Do you see a bright line out 

there that you can delineate where it is okay, when it is not, or 

just nothing at all? 

63 

Mr. GROSSMAN. Well, let me assume, first, that we are talking 

about constitutional interpretation as opposed to other applications—— 

Mr. QUIGLEY. Well, is that one of your bright lines, if it is only 

applying to constitutional interpretations, or is it just as the bill is 

proposed here, just anything? 

Mr. GROSSMAN. Well, as I explained in further detail in my written testimony, I identify with the remarks of other witnesses here 

with respect to the use of foreign law to interpret, say, contracts 

or international treaties. That may be relevant in those instances, 

although it may be a difficult undertaking. I think that is something that is often overlooked. 

So, I focus on constitutional interpretation because I think that 

is the area where the controversy lies, and ought properly to lie. 

With respect to that, is there a bright dividing line? To my mind, 

the important and legitimate foreign sources and international 

sources of law in constitutional interpretation are those that elucidate the background principles of the law that the framers in effect 

legislated against when they—— 

Mr. QUIGLEY. But who decides that point? I mean, can you legislate that at all where you decide at this point it is appropriate, and 

at this point it is not? 

Mr. GROSSMAN. Well, I think that is a wonderful question. In 

other words, what is it that Congress can do in this area? I think 

it is perfectly legitimate as a co-equal branch that Congress should 

state its belief of the proper means of interpretation of the Constitution, the proper means of interpretation of its own statutes. I 

think that is perfectly legitimate. 

And the Court, although it may not bow to the wishes of Congress in that sense, in other words, it will not be bound by them 

necessarily, I think should give them some degree of deference and 

should take them into account. 

Mr. QUIGLEY. So, help me here. You know, as an attorney, my 

concern here is that you are limiting. I feel like I am in a scene 

from Inherit the Wind, begin to limit thought, right? It is not an 

isolated country in any other respect. Our scientists, doctors, teachers, lawmakers, artists, business leaders, technology, architects—it 

is a world of thought out there. And to say, we are not going to 

listen, as this proposed bill says, to any other authority. I mean, 

we listen to Locke and Rousseau. 

Mr. RABKIN. Not Rousseau. 

Mr. QUIGLEY. Sorry? 

Mr. RABKIN. Not Rousseau. 

Mr. QUIGLEY. Well, I mean, I am sorry. If you read the Federalist 

Papers, they were considered, correct? Yes, thank you. 

Mr. GROSSMAN. The challenge with the citation of foreign law in 

particular is that law is generally cited in court opinions for its 

binding legal effect. In other words, it is relied on as a source of 

law. When a court cites in passing, a turn of phrase from a novel, 

or a scene from a movie or dialogue, or a phrase even from the 

Bible, it is not cited in a way as having binding legal effect. So, 

maybe foreign law could perhaps set a mood or an atmosphere. 

But when it is cited in a way such that it is taken to govern or 

speak to the meaning of, say, the Constitution of the United States, 

64 

that is a very different type of usage of law. A law review article 

is not itself binding law; it describes what the law is. But a foreign 

court opinion does not describe what the United States Constitution says or means. It says something else entirely. 

Mr. QUIGLEY. But you certainly do not want to tell judges at the 

local level or the Federal level how they are coming at their decisions, what authorities, what aspects of what they are learning. I 

mean, we are all a bundle of everything we have learned in our experiences. At what point are those foreign? It becomes very limiting, and the law should be the opposite of that. The law should 

be open to all kinds of thought. 

You know, brilliant writers are not just in the United States. The 

great jurists are not just in the United States as well. 

Mr. GROSSMAN. Well, sir, I am afraid I do not subscribe to that 

view. If I were before a court, I would like to be judged on the basis 

of the law and not on the basis of a novel or a movie or Shakespeare. 

Mr. QUIGLEY. One of the best decisions I ever read was Lights 

in Wrigley Field. They quoted ‘‘Take Me Out to the Ballgame,’’ one 

of the best, upheld by the Supreme Court. Whatever it takes to be 

just and fair. But as soon as you start limiting thought, you might 

as well have robots up there. 

Mr. GROSSMAN. Well, to the extent that they are merely thinking 

such things, but not relying on them for any legal, binding effect, 

to the extent that they are not decisional materials, fine, so be it. 

But I do not think that that is actually the focus of the controversy 

unfortunately. 

Mr. QUIGLEY. It is the focus of this bill. Thank you. 

Mr. FRANKS. I would like now to recognize Mr. Scott from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Rabkin, the language in the bill says that any court created 

by or under Article III of the Constitution of the United States, ‘‘No 

justice, judge, or other judicial official shall decide any issue in any 

case before that court, in whole or in part, on the authority of foreign law, except where a constitution of Congress provides it.’’ 

What does authority mean? 

Mr. RABKIN. I think that is a fair question. 

Mr. SCOTT. Well, let me ask you—— 

Mr. RABKIN. Probably a difficulty with the language in the bill. 

Mr. SCOTT. Let me ask it another way. What authority does foreign law now have in Article III, United States Federal courts? Authority. 

Mr. RABKIN. Putting aside a case involving a foreign contract 

where you are trying to decide it under foreign law because it was 

negotiated in a foreign country—— 

Mr. SCOTT. Well—— 

Mr. RABKIN [continuing]. Putting all that aside and just speaking 

about constitutional decisions, I think it is very hard. This is why 

law professors sometimes get paid a sizable salary to sort out what 

is the actual basis of the decision because there is often a lot of 

doubt. 

65 

Mr. SCOTT. If you have a U.S. circuit court, and you are talking 

about district court, and they have a case on point, that would be 

authority, is that right? 

Mr. RABKIN. Yes. 

Mr. SCOTT. What about, as the gentleman from New York has 

pointed out, the social service research, and State court decisions, 

law review articles? If they are cited, is that authority? It’s not authority; it’s just reason, help in reasoning. 

Mr. RABKIN. Honestly, I think there is not such a clear line here. 

Mr. Quigley used the word ‘‘bright line.’’ I do not think there is a 

bright line between—— 

Mr. SCOTT. Well, if—— 

Mr. RABKIN. The things that determine the outcome and the 

things that go into the argument. 

Mr. SCOTT. If you have a case of first impression for which there 

is no authority—— 

Mr. RABKIN. Yes. 

Mr. SCOTT [continuing]. What is wrong with noticing State court 

decisions or law review articles to help you decide? 

Mr. RABKIN. This is a very, very good example because what it 

shows is when you do not have another authority, you fall back on 

things that are not quite authoritative that are being used in place 

of the authority that you do not have, which means that you are 

treating them as a little bit authoritative. 

Mr. SCOTT. Well then, if a foreign court has dealt with the issue 

and produced a well-reasoned opinion, what’s wrong with citing 

that? 

Mr. RABKIN. I do not think 30 years ago we would be having this 

debate, and 30 years ago we would not have regarded that as controversial. I think in the current context where people are saying 

there should be transnational, quasi constitutional international 

human rights norms, then it makes people worry. 

Mr. SCOTT. Well, if you have a case of first impression, and we 

are trying to decide the case, what is wrong with noticing that 

every other court in the world has come up with a particular—— 

Mr. RABKIN. Because the implication is that we ought to be—— 

Mr. SCOTT. It might make some common sense to conform the 

United States to what everybody in the world is doing. 

Mr. RABKIN. This is why—— 

Mr. SCOTT. It might. It might not, if it makes sense. 

Mr. RABKIN. I think you have put this very well. A lot of us are 

concerned that the implication of this reasoning is that the United 

States needs to conform to the rest of the world. And we started 

out by saying let the rest of the world conform to us, that we hold 

these truths to be self-evident to ourselves. 

Mr. SCOTT. Since there is no authority based on what makes 

sense, Professor Fontana, what about based on the reasoning and 

not the authority of foreign law? If we pass this bill that says you 

cannot base it on the authority of foreign law, but you based on 

reasoning of foreign law, would that violate this legislative language? 

Mr. FONTANA. I also admit that I am a little unclear about the 

use of the word ‘‘authority’’ in the legislation. I believe there are 

two different types of authority that courts to look to, binding auVerDate Aug 31 2005 11:48 Feb 15, 2012 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 H:\WORK\CONST\121411\71624.000 HJUD1 PsN: DOUGA
66 

thority, like the decision of a higher court, and persuasive authority, which, as your question suggests, could be things like law review articles, social science evidence. And I am not sure what exactly the legislation covers. 

But I take it to cover looking to foreign courts or foreign law for 

either their reasoning or for whatever their actual state of law, forever the outcome as well. I take it to ban all foreign law. 

Mr. SCOTT. Thank you, Mr. Chairman. I yield back. 

Mr. FRANKS. Well, the gentleman yields back with extra time. So, 

I guess he yielded to me here. So, Professor Rabkin, take one last 

shot at it here, and tell me what would be the purpose of placing 

something in the argument if it is not part of the binding legal authority. And that is a question, not a leading point. 

Mr. RABKIN. Yeah. So, I would like to mention two things, and 

one is that, you know, lawyers try out a lot of different arguments, 

and they hope that if you are not persuaded by this, maybe you 

will be persuaded by that. And since you are aiming at maybe different people there, different judges, for example, or different members of the jury, it is not helpful to you to say, ‘‘This is the central 

argument, the real argument.’’ You may want to be a little vague 

about which one is crucial, which one is decisive, which one is just 

background. So, that is one way in which this gets fuzzed over. 

And I think another way it gets fuzzed over is every important 

case, particularly before the Supreme Court, is not just deciding 

that particular dispute. It is building precedent for the future. So, 

one of the things that you could be doing is laying the groundwork 

for later cases to say, ‘‘Ah, yes, here is something which they mentioned in that earlier case.’’ That happens all the time. And it, 

again, means that you have to worry about something which maybe 

Mr. Nadler would say in this particular case is not really crucial 

to this particular case, but the Court is still, in a way, offering it 

for the future as something which can be drawn upon. And if you 

do not like this development, then you do not want to be piling up 

things that future courts can draw upon. 

Mr. FRANKS. Well, it has been a very interesting hearing, and I 

want to thank all the Members here, and certainly thank the panelists. It seems like we have been arguing this point for a long 

time, the rule of law versus the rule of men. It is certainly an interesting subject. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond as promptly as they can so that their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days with 

which to submit any additional materials for inclusion in the 

record. 

And with that, again, I thank the witnesses, and I thank the 

Members and observers. And this hearing is now adjourned. 

[Whereupon, at 11:14 a.m., the Subcommittee was adjourned.] 

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