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HOUSE RESOLUTION ON THE APPROPRIATE ROLE

OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF THE CONSTITUTION OF THE UNITED

STATES

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

ON

H. Res. 97

JULY 19, 2005

Serial No. 109–40

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 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

JULY 19, 2005

HEARING ON H. RES. 97, EXPRESSING THE SENSE OF THE HOUSE OF REPRESENTATIVES THAT JUDICIAL DETERMINATIONS REGARDING THE MEANING OF THE CONSTITUTION OF THE UNITED STATES SHOULD NOT BE BASED ON JUDGMENTS, LAWS, 

OR PRONOUNCEMENTS OF FOREIGN INSTITUTIONS UNLESS SUCH FOREIGN JUDGMENTS, LAWS, OR PRONOUNCEMENTS INFORM AN UNDERSTANDING OF THE ORIGINAL MEANING OF THE CONSTITUTION OF THE UNITED STATES

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, 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 Tom Feeney, a Representative in Congress from the State 

of Florida, Subcommittee on the Constitution ................................................... 4

WITNESSES 

Mr. Viet D. Dinh, Professor, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 7

Prepared Statement ............................................................................................. 9

Mr. M. Edward Whelan, III, President, Ethics and Public Policy Center 

Oral Testimony ..................................................................................................... 11

Prepared Statement ............................................................................................. 14

Mr. Nicholas Q. Rosenkranz, Professor, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 28

Prepared Statement ............................................................................................. 30

Ms. Sarah Cleveland, Professor, University of Texas School of Law 

Oral Testimony ..................................................................................................... 36

Prepared Statement ............................................................................................. 38

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Tom Feeney, a Representative in Congress from the State of Florida ........................................................................... 57

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia ................................................................... 58

Prepared Statement of Public Citizen’s Global Trade Watch .............................. 59

(1)

HOUSE RESOLUTION ON THE APPROPRIATE 

ROLE OF FOREIGN JUDGMENTS IN THE INTERPRETATION OF THE CONSTITUTION OF 

THE UNITED STATES 

TUESDAY, JULY 19, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 4:05 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chair of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. 

Good afternoon. I would like to thank everyone for coming. This 

is the Subcommittee on the Constitution’s hearing on H. Res. 97. 

Today we are examining the appropriate role of foreign judgments in the interpretation of the Constitution of the United 

States. This hearing is important for a number of reasons, but, 

most importantly, to make clear from this Subcommittee’s perspective that the Supreme Court’s reliance, or any court’s dependence 

for that matter, on foreign judgments in the interpretation of our 

Constitution has no place. I would like to thank the distinguished 

gentleman from Florida, Mr. Feeney, for his continued work on H. 

Res. 97. 

We have a distinguished panel before us today, and I look forward to their testimony before this panel. I know that you all have 

busy schedules, and I know that Members of this Subcommittee 

join me in thanking you for taking the time to share your expertise. 

This hearing is timely as our attention is turned to the activities 

unfolding across the street. As the nomination process moves forward, I am reminded of article VI of the U.S. Constitution, which 

states 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; and the Judges in every State shall be 

bound thereby, any Thing in the Constitution or Laws of any State 

to the Contrary notwithstanding. The Senators and Representatives . . . and all executive and judicial Officers, both of the United 

States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.’’ Article VI and the oath that we all, including judicial officers, 

take as representatives of our Federal system of government, binds 

us to uphold and protect the Constitution of the United States of 

America. 

2

Unfortunately, over the last several years, we have witnessed a 

trend, a dangerous trend, I believe, in which the judiciary has 

strayed from its oath and duty to uphold the meaning of the Constitution. By looking to and relying on the decisions of foreign 

courts in the interpretation of the Constitution of the United 

States, the judiciary not only is undermining the vision of our 

Founding Fathers but is chipping away at the core principles on 

which this country was founded, chipping away at our Nation’s sovereignty and independence. 

When our country declared its independence from Britain, the 

Founders were very aware and concerned that King George had 

‘‘combined to subject us to a jurisdiction foreign to our Constitution 

and unacknowledged by our laws.’’ and, in drafting the Constitution, Alexander Hamilton stated in Federalist No. 78 that ‘‘It can 

be of no weight to say that the courts, on the pretense of a 

repugnancy, may substitute their own pleasure, or anyone else’s, to 

the constitutional intentions of the legislature,’’ making clear in the 

Constitution that there is no place for the use of Federal opinion. 

Despite our history, the vision of our Founding Fathers, and the 

clear mandates set forth in the Constitution, the judiciary has continued to rely, I think, and value foreign opinion in the interpretation of the United States Constitution. This past March 24, the Supreme Court in Roper v. Simmons cited the practice of other countries in striking down the death penalty, concluding that ‘‘It is 

proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.’’ in looking to 

the international consensus, Justice Kennedy clearly neglected to 

look to the consensus citizens of the 20 States that continued to 

allow the practice until March. 

This is not an isolated case. In 2003, in Lawrence v. Texas, the 

Court cited a decision by the European Court of Human Rights as 

a lack of world consensus on the illegality of such conduct. 

In 2002, in Adkins v. Virginia, the Court referenced the views of 

the European Union’s brief filed with the Court in a footnote to its 

decision to find death sentences for mentally retarded individuals 

unconstitutional. 

Our country has evolved to where there is enough precedent and 

enough corpus juris which a court can use to interpret and determine whether the laws of Congress or of the several States are permissible under the confines of our Constitution. Furthermore, our 

Constitution is clear as to its supremacy and to the role of the judiciary in upholding this constitutional tenet. 

Americans deserve certainty, most of all, from the principles on 

which this country was founded. They deserve to know the meaning of our Constitution as intended by our legislatures under our 

body of law, not as intended by the world. H. Res. 97 is necessary 

now more than ever to remind the Court and all representatives, 

elected and appointed, who took an oath to uphold their obligation, 

both to the Constitution, and to the American people. 

I look forward to hearing from our panel of witnesses on this 

issue this afternoon and on H. Res. 97. And at this time, I will 

yield to the gentleman from New York, Mr. Nadler, the Ranking 

Member of this Committee for the purpose of making an opening 

statement. 

3

Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, I want 

to join you in welcoming our witnesses today. As we await the 

President’s nomination of a new justice of the Supreme Court, it is 

important that this Committee consider the role of the judiciary in 

our system of Government. I hope that the Senate will, in considering the lifetime appointment of a Supreme Court justice, exercise 

its constitutional duty of advice and consent and not act merely as 

a rubber stamp. 

Our main concern, Mr. Chairman, is that attacks on the judiciary 

in this Committee have crossed the dangerous and inappropriate 

line between acceptable commentary and response, and potentially 

destructive attempts to destroy the separation of powers, which has 

been one of the foundations of our freedoms. 

Congress may certainly change legislation if we are not satisfied 

with the Court’s interpretation of the law. Congress may also 

choose not to exercise powers the Court has said we have under the 

Constitution. In rare and extraordinary circumstances, we can even 

initiate an amendment to the Constitution. We may not always 

agree on policy, but these are all powers given to Congress under 

the Constitution. 

This Committee and this Congress, however, have begun to stray 

from the appropriate to the dangerous. While I realize that some 

issues before the Court arouse strong feelings, Congress has a duty 

to set a reasoned example to the Nation. Lambasting the courts as 

unelected judges—if that were not the design of the Government—

undercuts the protection of our liberties. 

This Subcommittee, despite its name, has never taken the time 

to look into the Court’s long and worrisome record of using the 

11th amendment contrary to its intent, limiting the reach of the 

commerce clause in undercutting Congress’ powers to enforce the 

14th amendment in ways that have undercut our civil rights laws. 

The outrage has sometimes proved selective. 

Threats of impeachment, attempts to eliminate Federal court jurisdiction to rule on certain select issues, even an amendment to 

the budget a few weeks ago, to the appropriations bill to say no 

funds appropriated herein to the Justice Department may be used 

to enforce a specifically named decision of a Federal district court, 

ex parte communications with Federal judges concerning their actions in a particular proceeding, threats or subpoenas in cases 

where Members of this Committee disagree with a certain result, 

and the even inflammatory comments approving of violence against 

judges do a disservice to the foundations of our constitutional system of Government. 

Today we examine the use of non-U.S. sources in judicial decisions. I continue to believe that this is a big fuss over nothing. No 

case has ever turned on a foreign source. No foreign source has 

ever been treated as binding, and this phenomenon of citing foreign 

sources is certainly nothing new. What is really dangerous is the 

threats that accompany our deliberations, and the suggestion that 

Congress may exercise its power to tell the courts what is or is not 

appropriate, what is or is not an appropriate way to consider a 

complex issue. Our courts should not decide important issues with 

blinders anymore than should Congress. 

4

I would also remind my colleagues who voted for NAFTA, who 

are contemplating voting for DR-CAFTA, that our sovereignty is 

far more threatened by the remedies available to foreign corporations and governments because of NAFTA, and prospectively because of CAFTA, than because of anything that has appeared in 

these court decisions, whether it is international bodies telling us 

which laws we cannot—we can and cannot have or enforce, or foreign corporations seeking remedies against our businesses. And if 

our Members are really concerned about threats to our sovereignty, 

they will look at these foreign agreements which cede sovereignty 

to World Trade Organization tribunals as to which of our own laws 

we can enforce and which we cannot. 

I welcome our witnesses, and I look forward to hearing their testimony. I would also ask unanimous consent that Members have 5 

days to revise and expand their remarks and include additional 

materials in the record. 

I thank you, Mr. Chairman, and I yield back. 

Mr. CHABOT. Thank you. Without objection, so ordered. 

The gentleman from Florida, Mr. Feeney, who is one of the two 

principal sponsors of this legislation. If he would like to make a 

brief opening statement, I am sure the Committee would welcome 

that. 

Mr. FEENEY. I thank the Chairman. But before I do that, I would 

like unanimous consent to place into the record a statement by our 

good colleague, Congressman Bob Goodlatte, who is cosponsor of 

the Feeney-Goodlatte resolution. 

Mr. CHABOT. Without objection so ordered. 

Mr. FEENEY. Thank you, Mr. Chairman, again for holding a hearing on a very important issue. 

Six Supreme Court U.S. justices have approvingly been described 

by Professor—actually Yale Law Dean Harold Koh—as transna tionalists. They have increasingly expressed essentially disappointment in our own U.S. Constitution as originally written by 

the Drafters and Framers of our Constitution by importing foreign 

laws, fads, constitutions, and political polls to somehow create or 

reinterpret against their own 20- or 10-year-old precedence on the 

bench from the U.S. Supreme Court to reinterpret the meaning of 

our very Constitution. 

With disturbing frequency they have looked at and looked all 

over 191 nations recognized by the United States State Department 

for some favorable or agreeable laws that they could use to justify 

their result-oriented approach. 

So I want to thank Mr. Goodlatte and many others on this Committee. We hope to have a great civics debate as part of this discussion as we tee it up in the United States Senate in terms of what 

the appropriate role of the United States justice ought to be. 

If we are going to have a Republican government small arm—

meaning that people get to elect policymakers—I think every 

American, from third grade to the end of their retirement years, 

ought to understand what the appropriate role of the Justice is. 

That is, in my view, to interpret the original meaning of the Constitution and to interpret the laws as intended by the law-givers in 

the States and the Federal—at the Federal level. 

5

In the Declaration of Independence, Jefferson and the Founders 

explained the rationale for war against and separation from Britain. Among other things, they alleged that the King had combined 

with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws. 

Yet it appears that is exactly what is happening to the extent 

that we have Supreme Court Justices relying on contemporary 

fads, following polls, laws, et cetera, in order to somehow reinterpret the United States Constitution. The most recent alarming decision was in Roper v. Simmons. Again, the United States Supreme 

Court undermined its own precedent. This is not something that 

they were looking as comparative analysis or thought that it would 

be interesting to make note. 

You know, I would say to my friend from New York that indeed 

they did rely at least in part on foreign laws to change their own 

precedent with respect to whether or not people under the age of 

18 can ever be subject to the death penalty in America. 

Never mind that a majority of the States that have the death 

penalty, elected legislatures by the people, allow a 17-year-old murderer under certain circumstances to be put to death. In Florida, 

over 70 percent of the people have amended our Constitution to 

allow for the egregious circumstances for people under the age of 

18. 

So with one fell swoop, based in part on foreign law, we have the 

United States Supreme Court—or a majority anyway—throwing 

out constitutional referendum in Florida and throwing out the laws 

of a significant portion of our States. 

They did the same thing in Adkins, overturning their own precedent—democratically elected policymakers’ decisions. 

They did the same thing in Lawrence v. Texas on the issue of 

whether or not the State of Texas had the right to regulate sodomy. 

By the way I won’t necessarily quarrel with the outcome of any 

of their decisions. It’s exactly the fact that they relied on international laws, fads, institutions, constitutions, et cetera. 

It is important to read what the Feeney-Goodlatte resolution 

does. I would say to Professor Cleveland, we certainly welcome 

your comments. I am glad that you are here today because this is 

an interesting case. I was surprised, when I found and read your 

testimony, that I agree with a great deal of what you have to say. 

Indeed, it’s often appropriate to cite what is going on in other countries. 

In interpreting our Constitution, for example, it would be hard 

to understand the administration of powers if you hadn’t referred 

to Montague, who Madison says is essentially the founder of the 

concept of separation of powers. Our Founders were terribly familiar with everybody from Plato, Cicero, Lock, Mill, Blackstone, for 

a definition of the words ‘‘law of nations.’’ one of the problems we 

have here today is people are confusing the term ‘‘law of nations,’’

which is in article I of the Constitution, with international law. 

These are very different things. 

I would refer you to Mr. Blackstone’s description of what the law 

of nations are. It is actually something that doesn’t change over 

time; God-given rights like Jefferson referred to in our Declaration. 

6

International law changes a great deal. It does not prohibit, by 

the way, anytime there is legislative history involved in citing foreign authorities. 

If we decide to adopt the German pension system, for example, 

we debate the German pension system, we want to adopt a Social 

Security system designed on Bismarck’s system which, in fact, to 

some extent happened—it may be terribly important for the courts 

to look at the history in Germany of the pension system that Congress adopted. 

The legislative history is always appropriate. Treaty, maritime 

law, all mentioned in the Constitution, are always appropriate for 

the courts to recognize. 

What Feeney-Goodlatte prohibits is overturning constitutional 

precedent, is creating or finding new constitutional rights or privileges based on contemporary post-constitutional law. 

With that, I think that there is no more important question to 

ask the nominee that we expect at any time now, and all future 

nominees in terms of their jurisprudential approach. It seems to 

me that it is appropriate for nominees to comment on this. After 

all, we have Judge Scalia, Judge Breyer, Judge Ginsburg, and 

Judge O’Connor at a minimum, not only in their opinions, but off 

the bench, debating the legitimate use of international law to determine our own constitutional rights. 

I will end, Mr. Chairman, by suggesting that when courts do 

what I have suggested they have done in the three cases I have 

cited, they in my view violate article I, article II, article III, article 

IV, article V and article VI. Perhaps we will get into that. I can’t 

find anything in article VII that the judges are violating with respect to their oath when they engage in this procedure. And I yield 

back to the Chairman. 

Mr. CHABOT. Thank you very much. We have a very distinguished panel with us here this afternoon. We are anxious to get 

to them. I would like to introduce them at this time. 

Our first witness will be Mr. Viet Dinh. Mr. Dinh currently is a 

professor of law at Georgetown University Law Center and founder 

and principal of Bancroft Associates. His credentials are too numerous to list, but I will note that he previously served as U.S. Assistant Attorney General for Legal Policy from 2001 to 2003, served as 

Special Counsel to the U.S. Senate Whitewater Committee, and as 

Special Counsel to Senator Pete Domenici for the impeachment 

trial of the President. He was a law clerk to both Judge Lawrence 

H. Silberman of the U.S. Court of Appeals and to U.S. Supreme 

Court Justice Sandra Day O’Connor. It is very nice to see you 

again, Professor. 

Our second witness is Mr. Edward Whelan, and Mr. Whelan is 

the President of the Ethics and Public Policy Center, where he directs the Center’s program on the Constitution, the Courts and the 

Culture. Prior to joining EPPC, Mr. Whelan worked at the Department of Justice where he served as the Principal Deputy Assistant 

Attorney General for the Office of Legal Counsel, starting the position right before September 11th. Mr. Whelan previously served as 

General Counsel to the U.S. Senate Committee on the Judiciary. 

He is a former law clerk to both Judge J. Clifford Wallace on the 

7

U.S. Court of Appeals for the Ninth Circuit and for U.S. Supreme 

Court Justice Antonin Scalia. We welcome you here this afternoon. 

Our third witness is Nick Rosenkranz, who also worked in the 

Department of Justice’s Office of Legal Counsel, serving as an Attorney-Advisor. Prior to joining the Department of Justice, Mr. 

Rosenkranz served as a law clerk for both Judge Frank 

Easterbrook on the U.S. Court of Appeals for the Seventh Circuit 

and for U.S. Supreme Court Justice Anthony M. Kennedy. We welcome you here this afternoon, Mr. Rosenkranz. 

Our fourth and final witness is Sarah Cleveland, Marrs McLean 

Professor in Law at the University of Texas School of Law. Ms. 

Cleveland is a former Rhodes Scholar and a law clerk to U.S. Supreme Court Justice Harry Blackmun. Her interests include international human and international labor rights, foreign affairs and 

the Constitution, and Federal civil procedure. She is the author of 

many publications, including ‘‘Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth-Century Origins of 

Plenary Power in Foreign Affairs,’’ Texas Law Review, 2002. We 

thank you very much for being here this afternoon, Ms. Cleveland. 

For those who have not testified before this Committee before, let 

me explain very briefly our lighting system. We have what is called 

the 5-minute rule. You basically have 5 minutes to testify. Everyone, including Members up here, are limited to 5 minutes. 

We have the system there, the green light will be on for 4 minutes, the yellow light, we hope—it wasn’t working in the last hearing we had a few hours ago, we hope it is working now. The yellow 

light is supposed come on for 1 minute. And then the red light, we 

would ask you to wrap up as close as possible when that light come 

on. We will give you a little leeway but we would ask you to keep 

as close to that as possible. 

It is the practice of this Committee to swear in all the witnesses 

appearing before it. So if you would all please rise at this time and 

raise your right hand. 

[Witnesses sworn.] 

Mr. CHABOT. Thank you very much. All witnesses have answered 

in the affirmative. 

We will begin with you this afternoon, Professor Dinh. You have 

5 minutes. 

TESTIMONY OF VIET D. DINH, PROFESSOR,

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. DINH. Thank you very much, Mr. Chairman, and Members 

of the Committee. Thank you for the opportunity to be here again 

to talk about this important topic raised by House Resolution 97: 

When, if ever, is it appropriate for American courts to consult foreign courts of law in an interpretation of purely American law, particularly the United States Constitution? 

Let me start, as Mr. Feeney did, by listing the various areas in 

which, in my opinion, consideration of foreign sources of law would 

not only be appropriate but I think essential in the decisionmaking 

process of U.S. courts. 

First, obviously, where the case turns on the meaning of a foreign law. For example, in the case 2 years ago of J.P. Morgan v. 

Traffic Stream. Second where the case turns on the actions and 

8

wishes of foreign tribunals. For example, again, on the same term, 

the case of Hoffman-LaRoche v. Empagran. Third, where the case 

turns on the existence of meaning of the law of nations. Again, 

from the same term, Sosa v. Alvarez-Machain. And also when a 

court is interpreting a treaty, it is natural to look to the interpretation of that treaty by the courts of nations, who are also signatories 

to that treaty. Olympic Airways v. Husain, also in the same term, 

to which I return. 

Where foreign sources of law is not relevant and appropriate, 

however, is in the interpretation of the United States Constitution. 

There are several reasons for this. The Chairman and Mr. Feeney 

have gone through them in length. I just want to summarize here 

my testimony. 

First is the obvious fact that foreign courts are not interpreting 

the United States Constitution. How foreign courts interpret, for 

example, the European Convention on Human Rights tell us very 

little what a different document, that is our U.S. Constitution, 

means. It may well be, as many Justices have observed, that foreign judges often look to the United States Supreme Court precedent in interpreting constitutions and treaties, modeled after the 

United States Constitution. This is perfectly legitimate and normal; 

just as U.S. judges do and should look to the foreign antecedents 

to the U.S. Constitution to discern its meaning. But there is very 

little reason why the meaning of the U.S. Constitution should be 

informed by the views, the post-constitutional views, of contemporary foreign judges interpreting their own laws and constitution. 

Second is democratic legitimacy. It is okay to consider foreign interpretations of a common treaty, say the Warsaw Convention, not 

only because the courts are interpreting the same document. Rather, it is also okay because the democratic process has said that it 

is, implicitly or explicitly. Congress, in ratifying a treaty, has the 

opportunity to decide whether or not to involve the Federal judiciary at all by making a treaty self-executing or not. Even where 

Congress has given a role to judges in interpreting and enforcing 

a treaty by making it self-executing, Congress can specify the 

terms of such judicial involvement through reservation and other 

statutory language. In fact, the preamble to some treaties, again 

such as the Warsaw Convention, expressly recognize that intent 

and purpose to provide uniform legal principles or a uniform manner of interpretation. 

By contrast, in cases of purely American law, there are no corresponding democratic authorization of nor legislative checks on 

the reliance on foreign judgments. There is simply no way that I 

or any other citizen, or you as elected representatives of us, can affect how a foreign court would view a U.S. Constitutional issue. 

Thirdly and finally, there is simply a matter of consistent methodology. The reason why I bring up the Warsaw Convention and 

the case of Olympic Airways v. Husain so often in this brief statement is the fact that nobody doubts that consideration of foreign 

judgments in that context is legitimate. Yet a majority of the Supreme Court in deciding the matter neglected to even cite the fact 

that two other signatory nations have interpreted the exact same 

convention, deciding the exact same issue in a diametrically opVerDate 0ct 09 2002 12:54 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071905B\22494.000 HJUD1 PsN: 22494
9

posed way from which the Supreme Court had come to its conclusion. 

In dissent, Justice Scalia threw up his hands and said, here I 

have been saying for the last 3 or 4 years we shouldn’t consider foreign laws in illegitimate instances. In the one instance where it is 

legitimate, you can probably ignore the relevant judgment of foreign courts. 

The reason for this, I think one of the explanations for this, is 

that we as American lawyers, and especially as American judges, 

are just not very good at doing foreign laws. We are not steeped 

in their tradition, we do not know the interpretation. We do not 

know the entire body of law of a particular nation or of a particular 

organization or of a particular convention. So what is left is that 

we would cherry-pick those sources of law which would tend to support our point of view, whether it be in a brief or in a particular 

opinion. 

In the short run, that may ostensibly add to some ethereal legitimacy to or persuasiveness to that particular opinion or brief, but 

I would contend that in the long run and not very long either, but 

just a little bit of reflection would indicate the underlying illegitimacy and lack of reliability of such reliance. 

I will close there and take any further questions. Thank you very 

much. 

Mr. CHABOT. We appreciate it, Professor. 

[The prepared statement of Mr. Dinh follows:]

PREPARED STATEMENT OF VIET D. DINH

Mr. Chairman and Members of the Subcommittee, 

Thank you very much for this opportunity to comment on House Resolution 97 

and the very important constitutional issues raised by the consideration and application of foreign judgments to the interpretation of United States law, and particularly upon interpretation of the United States Constitution. 

The issue raised by today’s hearing is indeed an important one: when, if ever, U.S. 

courts should consider or rely upon the decisions of foreign courts in the interpretation of American law. The issue is particularly important at this time, as in recent 

years it appears our courts are more often referring to foreign laws and foreign 

court decisions to justify the conclusion reached in a particular case. American 

courts often refer to foreign law even in cases involving interpretation of a purely 

domestic law. Thus, unfortunately, it appears our courts, most noticeably the Supreme Court, are looking to foreign decisions and legal principles in the wrong instances. 

The consideration of foreign court decisions is not always improper or inappropriate. Where the law to be construed is a treaty, the interpretations given that 

treaty by other nations that are parties to the agreement are certainly relevant; our 

courts should consider these precedents in formulating their own interpretations of 

the same legal provision. Where, however, the law being interpreted is solely domestic, American law, and particularly where the interpretation is of a constitutional 

provision, decisions by foreign tribunals on a seemingly similar issue have no relevance. The foreign forum was not tasked with interpreting and applying U.S. law, 

but rather has the responsibility for applying its own laws. 

Despite what I conclude is a clear and necessary distinction between when the 

consideration of foreign judgments is appropriate, many Justices of the Supreme 

Court have made it clear that the trend of considering foreign judgments is not coming to an end, but rather is expanding. It is for that reason that I believe this is 

such an important topic. 

When the court is called upon to interpret a treaty or agreement among nations, 

the court must ‘‘accord the judgments of our sister signatories ‘considerable 

weight.’ ’’ Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985)). For example, in applying provisions of the Warsaw Convention, the Supreme Court has, in many instances, carefully considered the case law of parties to that treaty. See, e.g., El Al 

10

Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 173–74 (1999); Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 550–51 (1991); Air France, 470 U.S. 392. But see 

Olympic Airways, 540 U.S. 644. 

Unfortunately, in this area, where consideration of the judgments of foreign courts 

has significance, our courts have not consistently looked to such judgments. In at 

least one instance, foreign decisions were not considered at all by the majority. See 

Olympic Airways, 540 U.S. 644. This failure to consider the decisions of the courts 

of other countries who are parties to the relevant agreement represents a failure 

to follow a well-established legal principle—to ensure, to the extent possible, the 

consistent interpretation and application of a single law. 

Where two nations have jointly adopted a single law, it is consistent with accepted 

legal principles that an attempt should be made to provide for consistent interpretations of that law. ‘‘Foreign constructions are evidence of the original shared understanding of the contracting parties. Moreover, it is reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty consistently.’’

Id., at 660 (Scalia, J., dissenting). 

The legitimacy of considering foreign interpretations of a common treaty derives 

not simply from the technicality that the courts are interpreting the same document. Rather, it stems also from the interaction with the democratic process. First, 

Congress in exercising its constitutional authority to ratify a treaty has the opportunity to decide whether or not to involve the judiciary at all by making the treaty 

self-executing. Even where Congress has afforded judges a role in enforcing and interpreting a treaty, it can specify the terms of such judicial involvement through 

reservations and other statutory tools. In fact, the preamble to some treaties, such 

as the Warsaw Convention, expressly recognize that intent and purpose—to provide 

uniform legal principles or a uniform manner of regulation. Convention for the Unification of Certain Rules Relating to International Transportation by Air preamble, 

Oct. 29, 1934, 49 Stat. 3000, 3014, T.S. No. 876 (reprinted at 49 U.S.C. § 40105). 

By contrast, in cases of purely American law, there are no corresponding democratic authorization of nor legislative checks on the reliance on foreign judgments. 

There is simply no way that I or any other citizen can affect how a foreign court 

would view a particular issue. 

It is our own courts and not foreign courts that are tasked with interpreting our 

laws. The American judiciary is not independent of the Constitution and the laws 

of this country. Indeed, it is from the Constitution itself that any authority to interpret our laws vests in the judiciary. The Constitution does not separate and isolate 

us from other countries. It contains the treaty power, recognizing the need to cooperate and build relationships with other countries. It also does not limit or prevent our own lawmakers from looking to foreign laws and foreign court judgments 

in drafting, debating and developing our own laws. 

Though most recent consideration of foreign legal trends has occurred in connection with social issues, courts could conceivably extend this practice to use foreign 

authorities when adjudicating other fundamental issues, including our approach to 

our own national defense. For example, we cannot tolerate a court’s invalidating initiatives in the War on Terror on the grounds that some other nations view those 

actions as incorrect or unwise. To give weight to foreign decisions on matters of 

American concern opens the door for consideration of foreign decisions on all matters, even those that should ultimately be matters for us alone. 

Constitutional rights exist because of the Constitution itself. They do not derive 

from any source external to that document. It is through this contract between our 

government and our citizens that the government has the authority to enact laws 

and the courts have the authority to interpret them. The Constitution tasks our 

country’s courts with the interpretation of the document. It is not within the purview of any foreign tribunal to interpret the meaning of any provision of our Constitution. Foreign views of how our Constitution should be interpreted should provide no instruction to our own courts; nor should our courts eschew their own responsibility of interpretation by relying instead on the views of foreign jurists. In 

the same way that the parties to a treaty should respect each other’s interpretations 

of those mutually binding agreements, so too should American courts look to the understanding (as set forth in its text) the document was given by the actual parties 

to it—i.e., the American people at the time of its drafting and ratification. 

The recent reliance on international sources raises issues of sovereignty and separation of powers, and ultimately the dilution of the power of the people in this country. As Justice Scalia explains,

We must never forget that it is a Constitution for the United States of America 

that we are expounding. The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among 

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our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores but, text 

permitting, in our Constitution as well. But where there is not first a settled 

consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon 

Americans through the Constitution.

Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) (internal quotation marks and citations omitted). 

This conclusion holds across the spectrum of interpretive theories. Indeed, it is 

perhaps most necessary for expansive methodologies, such as ones depending on 

‘‘the evolving standards of decency that mark the progress of a maturing society.’’

Trop v. Dulles, 356 U.S. 86, 99–101 (1958). Because such expansive strategies are 

less anchored in the Constitution’s text, structure or history, a jurisprudential limitation on the geographic or jurisdiction sources of law is necessary to ensure that 

constitutional law remains predicated on neutral principles and not on the whims 

of individual judges or court compositions. 

To be sure, legislative direction to the courts on how to interpret the Constitution 

may raise significant separation of powers concerns. This Resolution, however, does 

not provide such direction, or otherwise require the courts to adhere to any of its 

statements. Rather, the Resolution merely provides the sense of this body that interpretations of our Constitution should not be governed by foreign judgments or views. 

It is wholly appropriate for the House of Representatives to provide its opinions 

on the interpretation of the Constitution, a document that its members, just as the 

members of the judiciary, have sworn to uphold and defend. It is certainly no more 

inappropriate than the all-too-often practice of federal judges, at all levels, to suggest legislative changes to Congress or even to make policy pronouncements on 

pending legislative matters. 

In the final analysis, I conclude that there is a place for the consideration of foreign judgments, and that place is in the interpretation of treaties with those foreign 

nations. Where consideration of foreign judgments is inappropriate is in the arena 

of purely domestic laws, for only when a formal agreement has been reached via 

a ratified treaty to conduct ourselves as they do in other countries is such consideration appropriate in our democratic system. Thus, I support the declaration set forth 

in House Resolution 97 that ‘‘judicial interpretations regarding the meaning of the 

Constitution of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning 

of the Constitution of the United States.’’

Mr. CHABOT. Mr. Whelan, you are recognized for 5 minutes. 

TESTIMONY OF M. EDWARD WHELAN, III, PRESIDENT,

ETHICS AND PUBLIC POLICY CENTER 

Mr. WHELAN. Good afternoon, Chairman Chabot and other Members of the Committee. Thank you for the opportunity to testify 

here today. 

Mr. CHABOT. I am not sure the mike is on. If it is, you need to 

pull it a little closer. 

Mr. WHELAN. Should be on now. 

Mr. CHABOT. Thank you. 

Mr. WHELAN. Good afternoon. Thank you for inviting me to testify here today. 

Two recent developments confirm that the threat posed by the 

Court’s misuse of foreign law is real and growing. 

First is the Supreme Court’s ruling in March in Roper v. Simmons. There, a five-Justice majority relied on international opinion 

as it held the execution of offenders who were 17 at the time of 

their offense violates the eighth amendment. And the sixth Justice, 

although in dissent, approved of the majority’s resort to foreign 

law. The facts of Roper warrant special attention as they starkly 

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illustrate how the same Justices who bow to the views of foreigners, are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country. 

When he was 17, Christopher Simmons planned a brutal murder. 

He assured his friends they could get away with it because they 

were minors. In the middle of the night, Simmons and a friend 

broke into a woman’s home, awakened her, covered her eyes and 

mouth with duct tape, bound her hands, put her in her minivan, 

drove to a State park, walked her to a railroad trestle spanning a 

river, tied her hands and feet together with electrical wire, 

wrapped her whole face in duct tape, and threw her from the 

bridge. Exactly as Simmons planned, his victim drowned, an unspeakably cruel death, in the waters below. Simmons confessed to 

the murder. 

At the death penalty phase of his trial, the judge instructed the 

jurors that they could consider Simmons’ age as a mitigating factor 

and the defense relied heavily on that factor. The jury recommended and the trial judge imposed the death penalty. 

Overturning its own precedent, the five-Justice majority ruled 

that the death penalty for juvenile offenders violates the eighth 

amendment. In support of its ruling, it found what it called ‘‘respected and significant confirmation’’ in the ‘‘overwhelming weight 

of international opinion against a juvenile death penalty.’’ According to the majority, the fact that the United States, alone with Somalia in the world, has not ratified article 37 of the U.N. Convention, which contains an express prohibition on capital punishment 

for crimes committed by juveniles, supports its conclusion that the 

juvenile death penalty is unconstitutional. 

But as Justice Scalia observed in dissent, ‘‘unless the court has 

added to its arsenal the power to join and ratify treaties on behalf 

of the United States,’’ the United States’ nonratification of article 

37 undercuts rather than supports the majority’s position. Scalia 

also points out that the Justices in the majority would never aim 

to conform American law to the rest of the world on matters like 

the exclusionary rule, church-state relations, and abortion. 

Second, in recent months, at least two Justices in the Roper majority have made remarkably feeble efforts to justify free-wheeling 

resort to foreign law on a broad range of constitutional questions. 

Addressing a group of international lawyers, Justice Ginsburg resorts to kindergarten talk. ‘‘We can learn from others,’’ she says. 

‘‘We can join hands with others.’’ We should ‘‘share our experience.’’

But she never explains how a foreign court’s decision on how a 

foreign law measures up to a foreign charter can have analytical 

value in construing our Constitution. 

Justice Breyer argues that citing foreign judges might ‘‘give them 

a leg up’’ in dealing with legislators in their own countries. In 

short, he seems to think it part of his job to attempt to influence 

internal disputes in foreign countries. Beyond that, Breyer utters 

irrelevant platitudes like ‘‘Americans are human and so is everybody else,’’ and ‘‘our people in this country are not that much different than people other places.’’

There is no legitimate basis for the Supreme Court to rely on 

contemporary foreign laws or decisions in determining the meaning 

of provisions in our Constitution. The six Justices who resort to 

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these materials do so because they embrace an essentially lawless, 

utterly unconstrained view of their own role as Justices. 

It is no coincidence that it is these same six Justices who have 

endorsed the vacuous New Age declaration that ‘‘At the heart of 

liberty is the right to define one’s own concept of existence of meaning, of the universe, and of the mystery of human life.’’ For that 

declaration is nothing more than camouflage for the underlying 

claim by those Justices to have the limitless power to define for all 

Americans which particular interests those Justices think should 

be beyond the bounds of American citizens to address through legislation. 

The Framers established a constitutional structure into which 

American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their 

own States and communities and the Nation should be governed. 

In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield 

whenever it suits them. 

Thus the broader long-term resolution to the problem that House 

Resolution 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices like Scalia and Thomas who understand that the Constitution constrains them to construe its provisions in accordance with the meaning those provisions bore at the 

time they were promulgated—Justices, in short, who understand 

that the Constitution does not give them free rein to impose their 

own policy preferences on the grand questions of the day. 

Thank you. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Whelan follows:]

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PREPARED STATEMENT OF M. EDWARD WHELAN III


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Mr. CHABOT. Mr. Rosenkranz, or Professor Rosenkranz, you are 

recognized for 5 minutes. 

TESTIMONY OF NICHOLAS Q. ROSENKRANZ, PROFESSOR, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. ROSENKRANZ. I thank you, and I thank the Committee for 

the opportunity to express my views on this important topic. 

I largely agree with what has been said so far, so I will limit myself to three brief comments: 

First, I will discuss the separation of powers implications of directing a resolution regarding constitutional interpretation to the 

judiciary. 

Second, I hope to show that the reliance on current foreign law 

undermines the bedrock principle of democratic self-governance. 

Third, I will explore whether the Congress should also take up 

the same issue in the context of statutory interpretation. 

The first point I wish to make is that House Resolution 97 is consistent with separation of powers. At a prior hearing before this 

Committee, my colleague, Professor Vicki Jackson, suggested that 

legislative directions to the courts on how to interpret the Constitution raise serious separation of powers questions. She may well be 

right. 

But the key point today is that House Resolution 97 does not 

give directions to the courts. It does not purport to bind them. It 

simply expresses the sense of the House on this question. Because 

the resolution does not bind the judiciary, it cannot be objected to 

on separation of powers grounds. Indeed it should be applauded on 

these grounds. It is entirely proper for Congress to inform the 

courts of its views on constitutional interpretation. It is particularly appropriate when the method under discussion has such dramatic implications. 

Which brings me to my second point. The current predilection for 

using contemporary foreign law to interpret the U.S. Constitution 

necessarily entails a rejection of the quest for original meaning. 

Simply put, those who would cite contemporary foreign law necessarily embrace the notion of an evolving Constitution. 

The notion of the Court updating the Constitution to reflect its 

own evolving view of good government is troubling enough, but the 

notion that this evolution may be brought about by changes in foreign law raises fundamental issues of democratic self-governance. 

This, I think, puts the finest point on what is really at stake here. 

When the Supreme Court declares that the Constitution evolves, 

and declares further that foreign law affects its evolution, it is declaring nothing less than the power of foreign governments to 

change the meaning of the United States Constitution. 

Moreover, it might take only a single foreign country to tip the 

scales and create a consensus in the eyes of the courts. And there 

is no reason why a foreign country could not do this self-consciously. Indeed, France has expressly announced that one of its 

priorities is the abolition of capital punishment in the United 

States. Yet surely it would come as a shock to the American people 

to imagine the French Parliament deciding whether to abolish the 

death penalty not just in France, but also in America. 

29

After all, foreign control over American law was a primary grievance of the Declaration of Independence. King George III had 

‘‘subject[ed] us to a jurisdiction foreign to our constitution.’’ This is 

exactly what is at stake here: foreign government control over the 

meaning of our Constitution. Any such control is inconsistent with 

basic principles of democratic self-governance, reflected both in the 

Declaration of Independence and in the Constitution itself. 

The third point I wish to make is that while the resolution is 

limited to interpretation of the Constitution, courts often rely on 

foreign and international law in the interpretation of other federal 

law as well. Now, Professor Dinh has explained how foreign judgments may be relevant to the interpretation of treaties. A different 

question is whether international law may be relevant to the interpretation of Federal statutes. 

Under current doctrine, courts regularly bend over backwards to 

construe Federal statutes to be consistent with international law, 

even when the text of the statute would perhaps be a different construction. Now, particularly in light of the dramatic expansion and 

metamorphosis of customary international law since World War II, 

Congress may want to consider whether it approves of this doctrine. 

If it decides that the answer is no—that it would prefer for its 

statutes to be read according to their plain terms without reference 

to international law—then it might consider a subsequent resolution parallel to the present one, expressly rejecting the general use 

of international law in interpreting Federal statutes. 

Indeed, while congressional mandates to foreign—Federal courts 

regarding constitutional interpretation may raise separation of 

powers concerns, congressional mandates regarding statutory interpretation generally do not. Thus Congress could, in fact, go further 

and enact a mandatory statute along the following lines: ‘‘Future 

acts of Congress shall not be interpreted by reference to foreign or 

international law unless they expressly reference and incorporate 

such bodies of law.’’ I believe that such a statute is worthy of serious consideration. 

In conclusion, House Resolution 97’s nonbinding message to the 

courts does not violate separation of powers but, rather, reflects a 

healthy step toward interbranch constitutional dialogue. Moreover, 

the resolution rightly rejects the troubling notion that our Constitution can be made to evolve at the behest of foreign institutions. 

My only suggestion is that Congress next study this same issue as 

it applies in the context of statutory interpretation. 

I applaud House Resolution 97, and I thank the Committee for 

the opportunity to endorse it. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Rosenkranz follows:]

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PREPARED STATEMENT OF NICHOLAS QUINN ROSENKRANZ


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Mr. CHABOT. Our final witness this afternoon is Professor Cleveland. You are recognized for 5 minutes, Professor. 

TESTIMONY OF SARAH CLEVELAND, PROFESSOR,

UNIVERSITY OF TEXAS SCHOOL OF LAW 

Ms. CLEVELAND. Thank you. I also thank the Committee for inviting me to address this important subject. Before I start, I should 

note I am speaking in my personal capacity. None of the views I 

state reflect the views of the University of Texas. 

I oppose proposed Resolution 97, because the resolution is contrary to over 200 years of American constitutional tradition. Since 

the founding of this country, the Federal courts routinely have considered foreign sources of laws in resolving constitutional questions, and the recent cases such as Lawrence and Roper are fully 

consistent with this heritage. Indeed, it is the critics of the practice 

who are the innovators now. 

Foreign sources have been employed by the most respected jurists this country has known, including Chief Justice John Marshall, Chief Justice Taney, Justices Story, Field, John Marshall 

Harlan, Cardozo, Sutherland, Jackson, Frankfurter, and Chief Justice Earl Warren. 

At least seven members of the current Supreme Court have embraced the use of foreign authorities, including Chief Justice 

Rehnquist, who has supported having U.S. courts look to the decisions of other constitutional courts to aid in their own deliberative 

process. 

The Court has employed constitutional—international legal materials in constitutional analysis for a variety of purposes. For example, courts often explain a domestic constitutional rule by distinguishing it from another country’s practices. Judges, including Justice Scalia, have used foreign examples to test the likely result of 

a particular constitutional hypothesis. Yet even these modest uses 

of foreign authority could be considered contrary to House Resolution 97. 

The Supreme Court has also recognized that our constitutional 

design invites consideration of foreign authorities in a variety of 

ways. I will offer six examples. 

First, the one that has been mentioned already, Congress’ power 

to define and punish offenses against the law of nations, requires 

the Court to consider international rules in construing the scope of 

Congress’ authority. 

Second, the Court has looked to international law to interpret 

constitutional terms that refer to concepts of international law such 

as ‘‘war’’ or ‘‘treaties.’’ Constitutional war powers decisions in particular have drawn heavily from modern international law norms, 

not simply the international rules that existed at the time of the 

framing. 

Third, in perhaps the most interesting set of cases, the courts 

have looked to international rules governing relations between sovereign nations and applied those rules to determine the scope of 

State authority within our Federal system. They have done this in 

the context of 14th amendment Due Process and the Full Faith and 

Credit Clause. 

37

Fourth, in numerous cases involving Congress’ power to regulate 

immigration, govern Indian tribes, govern territories, exercise the 

power of eminent domain, and to borrow money, the Court has 

looked to the powers of other sovereign governments to conclude 

that Congress should, in fact, have this power. 

Fifth, the Court has also recognized that international law may 

create a compelling governmental interest in constitutional cases. 

The case of Booz v. Berry involved the question of whether or not 

a D.C. ordinance regulating protests outside of foreign embassies 

violated the first amendment. The Supreme Court recognized that 

U.S. international obligations could create a vital governmental interest, warranting regulation under some circumstances. The case 

indicates that in some context it would be difficult to interpret even 

the first amendment without considering modern international law. 

Finally, to the extent that the Constitution’s individual rights 

provisions incorporate assumptions about the basic rights of all 

human beings, the Court has recognized for over 100 years that 

foreign practices regarding shared common values are an appropriate sounding board for the scope and meaning of constitutional 

norms. This approach recognizes, as did the Declaration of Independence, that our constitutional heritage incorporates certain 

rights that are shared and ‘‘inalienable,’’ not simply rights unique 

to the American tradition. 

Moreover, the use of foreign sources of law is not a liberal versus 

conservative issue. The current Republican administration has relied heavily on modern international law rules in interpreting the 

President’s powers to fight the war on terror, including the power 

to convene military tribunals and the power to detain enemy combatants. 

My primary point in offering these examples is to underscore the 

extent to which reliance on international and foreign sources is 

fully part of the American constitutional heritage. An effort to 

eliminate reliance on foreign authorities in constitutional analysis 

therefore would pull the rug out from beneath many of our constitutional doctrines, including many of the established powers of 

this Congress. 

Judicial consideration of foreign authority does not mean, however, that we are delegating control over our values to foreign governments or violating our own democratic traditions. It is our domestic Constitution, as interpreted by our own duly appointed 

judges, that determines the relevance of foreign authorities to our 

constitutional system in every case. 

Thank you. 

Mr. CHABOT. Thank you very much, Professor. 

[The prepared statement of Ms. Cleveland follows:]

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PREPARED STATEMENT OF SARAH H. CLEVELAND


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Mr. CHABOT. Now the Members of the panel up here will have 

5 minutes each to ask questions. I will begin with myself. 

Last year it was suggested by some that this topic was really 

much ado about nothing. Since then, we have witnessed the courts 

becoming more public and unapologetic about the need to rely on 

the international community to give them a better understanding 

of our own Constitution or to help them in deciding cases in this 

country. 

How real is the threat that reliance on foreign opinions, especially those that are consistent with the judges’ own moral or social 

policy judgment, will become standard practice? What are the implications of such selective interpretations, such as that used in 

Roper, and, prior to that in Lawrence, if Congress does nothing? 

I would invite any of the members of the panel to respond if they 

would like to do so, in any order that you would like to, if anybody 

wants to jump in at the bit. 

Mr. Whelan. 

Mr. WHELAN. I think it’s an excellent question. I think that reliance on foreign law, as I described, is another engine of lawless judicial activism. No Justice has been able to explain when it would 

be proper to do so, when it wouldn’t, in terms of construing the 

meaning of the Constitution. I think most of the examples we have 

heard—I agree with the point Mr. Feeney made. Most of the examples that Professor Cleveland raised are examples to which we 

would have no objections. They are not examples that come at the 

core of construing the meaning of the Constitution. But more than 

that, even if one can find sporadic examples in the past where this 

may have been done, what we are facing right now is a concerted 

effort internationally to try to impose international norms and laws 

on the American people to detract from their sovereignty, their 

ability to govern themselves. 

This is a real threat that is multifaceted. The Justices will be 

feeding that threat if they continue to invoke foreign law in the unprincipled manner in which they have been doing. 

Mr. CHABOT. Thank you. Any other witnesses like to answer 

that? I have got more questions if not. But, Professor Cleveland. 

Ms. CLEVELAND. Well, I would simply observe that my comments 

go to the fact that this has been standard practice for two centuries 

in certain constitutional contexts, and that indeed the process is a 

very modest one. That in the Lawrence case, all the Supreme Court 

did was note that contrary to Chief Justice Berger’s opinion in 

Bowers v. Hardwick, the European Court of Human Rights had 

prohibited homosexual sodomy 5 years before the Bowers v. Hardwick decision. He [Justice Kennedy] was simply correcting an error 

that had been made by the prior court. 

Likewise in Roper, the Court found a national consensus prohibiting the execution of juveniles and concluded that because of—for 

developmental reasons, juveniles were inappropriate for the death 

penalty—before they ever considered international practice—and 

then they only did so as one element in a very complex eighth 

amendment analysis. 

Mr. CHABOT. Thank you. Professor Whelan. 

Mr. WHELAN. There is a game going on here where those who invoke foreign law always pretend that it doesn’t matter. Let’s take 

44

the words of the Supreme Court seriously in the Roper case. The 

Court said that foreign law, international opinion, was providing 

confirmation for its holding. Now, you can say, ‘‘Oh well, perhaps 

it appears it would have reached the same conclusion no matter 

what.’’ Perhaps it might have. 

You know what these Justices are telling us is, ‘‘Don’t worry, it’s 

not controlling.’’ That gives no comfort at all. When they say it is 

not controlling, they are not denying the fact that it is a factor that 

will be given weight, and that weight could prove in any particular 

case to be dispositive—but we will never know when. More than 

that, the fact that it is not controlling is simply an illustration of 

the fact that this is lawless judicial activism. They come up with 

no principle—they will not be bound by it. 

I am not worried about any Justices saying, ‘‘I am going to be 

bound by foreign law in these areas.’’ They are not going to commit 

themselves to that because they want to select foreign decisions in 

a very opportunistic manner in order to support whatever decision 

they want to reach. That is why——

Mr. CHABOT. Thank you. My time is just about up here. What 

I am going to do is recognize Mr. Nadler here for his 5 minutes. 

We have some votes on the floor, but I think we can fit in one set 

of 5 minutes here before we vote, so Mr. Nadler is recognized for 

5 minutes. 

Mr. NADLER. Thank you. Part of this debate concerns the question of original intent. With respect to the Roper decision, which 

was the death penalty for juveniles decision, some have argued 

that the majority should not have considered evolving standards of 

decency; that they should only look to the original intent of the 

Framers at the time of the adoption of the Constitution. 

The resolution—some of the testimony today seems to take that 

position as does Justice Scalia. As Justice O’Connor pointed out in 

her dissent, that would mean interpreting the Constitution to permit the execution of 7-year-olds, which was apparently the understanding 20 years ago. Should the Court hold as permitted any 

punishment meted out at the time of their eradication of the eighth 

amendment? Is that where we are at, Professor Dinh? 

Mr. DINH. What a wonderful question not only in this context but 

in the context of the Constitution interpretation in general. As you 

know the eighth amendment prohibition is against cruel and unusual punishment. So, just like the concept of reasonableness, I 

think, the Founders had put into constitutional language some 

temporal give to allow judges——

Mr. NADLER. By the use of the world ‘‘unusual’’ as opposed to 

simply ‘‘cruel.’’

Mr. DINH. Exactly. 

Mr. NADLER. Because what is cruel now is cruel 200 years from 

now. But what is unusual—but what is not usual now may be unusual 200 years from now? 

Mr. DINH. I think that by and large, that is correct. Where I 

think where we would part company is where the Supreme Court 

has held that this language depends upon, quote, ‘‘the evolving 

standards of decency’’ that mark the progress of a maturing society 

in 1958. Whether or not that is a correct standard, that is the apVerDate 0ct 09 2002 12:54 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071905B\22494.000 HJUD1 PsN: 22494
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plicable standard that the Court was applying in Roper v. Simmons.

My testimony here, I want to stress, does not depend upon the 

adoption of any particular interpretive methods. Indeed, the need 

to eschew foreign law holds across the spectrum of interpretive 

theories. 

Mr. NADLER. I hear that. But let me go further, because I only 

have a few minutes. Taking your point, taking your point that the 

cruel and unusual could evolve over time, because there is a give 

in that phrase, in Bowers—I am sorry, in Lawrence—as Professor 

Cleveland pointed out—the opinions citing British and—cited British and European authorities basically to rebut the assumption in 

Bowers v. Hardwick that homosexual sodomy was universally condemned by Western civilization, to say, no, maybe it was once, but 

it isn’t now. Is that a misuse of the power given what you have just 

said? 

Mr. DINH. I think it is, because it is—it is an abandonment of 

any anchoring of an expansive interpretive theory, especially if 

your interpretive theory is not anchored on text, history, and structure of the Constitution. You have to find your legitimacy somewhere, but taken out of your own jurisdiction——

Mr. NADLER. Professor Cleveland, could you answer my question? 

Mr. DINH. —in terms of the legitimacy of the Court. 

Ms. CLEVELAND. Well, the question is what does fundamental liberty protect? In the Bowers decision, the Justices, or at least Chief 

Justice Burger, had looked out at what he thought was Western 

civilization and said, uniformly, Western civilization prohibits this, 

when in fact homosexual sodomy could not be criminalized within 

the 50 states of the Council of Europe. That was the point that Justice Kennedy was making. I think it’s a very important one. 

Mr. NADLER. So in other words, Justice Burger used—cited the 

practice internationally to justify the Bowers decision by saying 

this is condemned everywhere; and in the Lawrence decision, they 

cited international decisions to say that is simply, factually, incorrect as to what the foreigners do, because it was cited originally by 

Berger. 

Ms. CLEVELAND. Precisely. 

Mr. NADLER. Is there nothing wrong with that in either way? Assuming that Berger had not been wrong factually, was it wrong for 

him to cite the foreign consideration; was it wrong for the Court 

20 years later to cite it also? 

Ms. CLEVELAND. I don’t believe so. If Burger had been correct, 

then one consideration in deciding what fundamental liberties are 

protected under the Due Process clause would be what our Western 

civilization historically has allowed or prohibited. 

Mr. NADLER. Thank you. 

Let me ask Mr. Whelan and Professor Rosenkranz, do you think 

that Chief Justice Burger was wrong in Bowers to cite the universal condemnations, as he put it, of homosexuality and to cite 

foreign courts and foreign practice? 

Mr. WHELAN. Sir, I believe you are dealing with an opinion of 

Justice White’s. Perhaps I am mistaken, but Justice White wrote 

the lead opinion in Bowers. I am sorry, Lawrence—Bowers, excuse 

me. 

46

Mr. NADLER. Bowers, yes. 

Mr. WHELAN. I am confused now. I haven’t read that opinion recently. I don’t know whether he was responding to one of many arguments that was made. I would, though, if you would permit me 

to respond to your question about the common—the understanding 

of the eighth amendment at the time of the founding. With all due 

respect, I believe your question betrays a fundamental distrust of 

the American people. 

The fact that the American people might have a power to enact 

unjust laws no more means that power shouldn’t exist than the fact 

that they might have power to say that if you cross Constitution 

Avenue you should be wearing yellow pajamas and hopping on one 

foot, There is no reason to think that—— Mr. NADLER. Wait a minute. What has that got to do with what 

I have said? I am completely lost. 

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

Mr. NADLER. Could I ask unanimous consent for 1 additional 

minute? 

Mr. CHABOT. How about 30 seconds, because we need to be on 

the floor in about 5 minutes. 

Mr. NADLER. Let me just say I believe the Congress has the 

power to enact anything delegated to it, including the Necessary 

and Proper clause interpreted in McCall v. Maryland and its progeny, up to where it’s limited by the Bill of Rights. 

Let me just take 30 seconds, Mr. Chairman, to note the presence 

in this hearing room of the distinguished judge of the highest State 

court of New York, the Court of Appeals, Robert Smith. 

Mr. CHABOT. Excellent. We appreciate your appearance here 

today. 

I might note that there is probably only about 5 minutes left on 

the vote on the floor. We have five votes. I would encourage the 

Members to come back immediately after the fifth vote. We will 

take up the hearing from there. These are the last votes of the day, 

so I am not sure how many Members will come back. But I know 

these Members are probably the most hardworking Members in the 

whole Committee, so I think they will be back. 

We will see you back here. It will probably be about 45 minutes 

because we do have five votes on the floor. So we are in recess. 

[Recess.] 

Mr. CHABOT. The Committee will come back to order. The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes. 

Mr. HOSTETTLER. I thank the Chairman, and I thank the Chairman for holding this very important hearing. 

As we look at cases recently and in the past that the Supreme 

Court has ruled on, I come to the conclusion, as was stated by some 

of the witnesses, that basically the Court uses whatever they want 

to use to determine what they believe to be, what they feel is their 

own interpretation or application of the Constitution for any particular situation: the use of international law; as they see fit, the 

use of congressional intent or noncongressional intent; a consensus 

of community values, community views. 

And I would like the witnesses just to kind of maybe put a finer 

point on, maybe—or a blunt point would be better—in responding 

to the notion that someone, a layman looking at, which I am, lookVerDate 0ct 09 2002 12:54 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 G:\WORK\CONST\071905B\22494.000 HJUD1 PsN: 22494
47

ing at the views of the Court, would conclude that based on what 

the Court wants to do with a particular issue, particular case, they 

find an excuse or reason, a rationale to come up with their viewpoints. 

I would like to, before I ask you to respond to that, visit for the 

record, to try to correct the perception that might have been created earlier about the notion that Justice Kennedy spoke to what 

was decided by in Bowers and commented on by Chief Justice 

Burger with regard to the use of international law. 

Actually, later on in his decision, he actually says, quote, ‘‘To the 

extent Bowers relied on values we share with a wider civilization, 

it should be noted that the reasoning and holding in Bowers have 

been rejected elsewhere,’’ end quote. And it goes on to cite the European court of human rights in a case, 2001; Modinos v. Cyprus,

1993; Norris v. Ireland, 1988. 

So the Court was not merely looking. Kennedy was not—Justice 

Kennedy was not merely looking at what had happened prior to 

Bowers. But he also extrapolated and went forward to and suggested that this decision should come down relative to international 

norms as found in international proceedings. 

But am I wrong in a layman’s reading of Court decisions that 

suggest that if the Court wants to rely on congressional intent, deciding something in the majority, if it does and if it doesn’t; and 

if it wants to rely on international law or other tribunals to come 

down on a decision that—in a way that it—in science we refer to 

it as dry-labbing. And that is, you know the answer to the question; 

you just now have to create the hypothesis and the experiment to 

be fashioned around the response that you want or that you know 

that you are going to get out of the experiment. 

Are we basically dry-labbing when it comes to Supreme Court decisions in many cases? 

Mr. DINH. I will start. I hope you are wrong. And I hope that the 

debate here is only one of form. But it is a very important one of 

form, especially if you are wrong. That is that judges are actually 

making honest, faithful decisions, rather than dry-labbing or predetermining the result and then making up the reasoning in order 

to justify it. Because that truly would be a subversion, not only of 

the democratic process, but the rule of law that the judges are 

sworn and ordered to protect. 

Perhaps that would be a violation of article VII that Mr. Feeney 

was looking for elusively earlier. So I do hope that you are wrong. 

In all the evidence that I look at, I would give the benefit of the 

doubt certainly to the Justices of the Supreme Court. But because 

these are very close cases and they are cases that divide society, 

in which the Supreme Court and judges hold great sway, I think 

it is incumbent upon the judges to rely upon not only appropriate, 

but truly legitimate sources of interpretation so that the power of 

the robe, which is the legitimacy of their word and of their interpretive techniques, survives the inevitable political and social controversy that would attend to any one of these very close calls of 

a decision. 

Mr. CHABOT. The gentleman’s time has expired. Did the gentleman wish to get response from the others? 

Mr. HOSTETTLER. Unanimous consent to respond for the others. 

48

Mr. CHABOT. Absolutely. The others Members can respond. 

Mr. WHELAN. Mr. Hostettler, what you so well described about 

Justices just making it up and looking for whatever arguments 

support their conclusions is exactly the case for six Justices on the 

Supreme Court. 

They use the label ‘‘the living Constitution,’’ and they get all 

sorts of support from left-wing academics and also the camouflage 

from the media. But that is exactly what they are up to. There is 

no benefit of the doubt left to be accorded. We have been seeing it 

for several decades now. And that is why we need to have Justices 

who recognize that they themselves are constrained by principles 

outside them in the manner that they construe the Constitution 

and other Federal laws. 

Mr. ROSENKRANZ. I think it is a terrific question. I think the 

hyper-realist critic of the Court is that the result comes first and 

that we can always find reasoning for whatever result we prefer. 

I, like Professor Dinh, like to think that this is a caricature. Perhaps there is some truth to it, but surely it is an exaggeration. And 

the main constraint on the judiciary is that they have to write 

down their reasons, and for that reason, we do some good when we 

rule some rationales off the table. 

We say, you can write down a number of different kinds of reasons, but reasoning from current international law is illegitimate. 

We rule that off the table. We make it harder to reach certain results. We constrain judges to appropriate methods of constitutional 

interpretation. It doesn’t make it impossible to do results-oriented 

judging, but it does make it harder. So I think we move the ball 

down the field when we engage in this exercise. 

Ms. CLEVELAND. I would agree with Professor Rosenkranz that 

the hyper-realist view is, we all hope, a characterization, and there 

are very real constraints on what decisions judges can reach. They 

are bound by the text of the Constitution. They are bound by the 

structure. They are bound by precedent. They are bound by history. 

They are bound by what society will tolerate. 

And Justice O’Connor, among other Justices, has observed that 

the Supreme Court never strays too far to the left or the right of 

the society in which it is currently operating. 

None of those constraints would prohibit any particular individual from reaching a particular conclusion, but collectively within 

the dynamic of the Court, they actually play a very real role, as 

we all saw as law clerks, in confining the range of movement that 

the judges have available to them. 

Mr. HOSTETTLER. Thank you. 

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

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you. Thank you, Mr. Chairman. And I hope 

the sponsors of the amendment won’t be offended if I don’t agree 

with the idea that we ought to rely on the original intent of the 

Constitution. Insofar as if we kept the original intent, I would only 

have three-fifths of a vote on this Committee and not a full vote. 

Mr. HOSTETTLER. Will the gentleman yield on that. 

Mr. SCOTT. I will yield. 

49

Mr. HOSTETTLER. And that is an excellent point in that that was 

changed by amendment—amending the Constitution. But the notion of obtaining the consensus of the American people outside of 

an article V process is, I think, not legitimate as far as the Constitution is concerned. 

And I thank the gentleman for yielding. 

Mr. SCOTT. Reclaiming my time, let’s kind of quick put this in 

context. 

If this resolution passes and the chief sponsor of the resolution 

says, this will prevent judges from ruling in such a way—Professor 

Cleveland, if this resolution passes, will it have any effect on the 

judiciary? 

Ms. CLEVELAND. It won’t have any effect on the judiciary in the 

sense that——

Mr. SCOTT. Will it have any legal effect? 

Ms. CLEVELAND. It won’t have any legal effect on the Federal judiciary. It could have a chilling effect on what judges have been—

are willing to do. 

Mr. SCOTT. We have been trying to chill the judges, but this 

won’t be doing anything more than anything else we have been 

doing up here. 

Let’s—if we deny that, will we have phrases like ‘‘cruel and unusual’’? Who do you think decides what is cruel and unusual without taking a global view on it? 

Why shouldn’t—Professor Cleveland, why shouldn’t the courts 

take into consideration that in putting juveniles to death we are 

the only ones in the world doing it? Doesn’t that kind of inform us 

as to what is cruel and unusual? 

Ms. CLEVELAND. If the United States is the only country in the 

world imposing the punishment, I would submit to you that that 

is truly unusual. 

Mr. SCOTT. If we waited for judges—if we waited for legislatures 

to change the rules rather than letting activist judges change the 

rules, could Brown v. Board of Education ever have been decided? 

Could we have eliminated segregated public schools by waiting for 

the legislative branch and State legislatures to change the results? 

Ms. CLEVELAND. It would have taken a long time given the 

limitss on African-Americans voting in southern States and elsewhere. 

Mr. CHABOT. Will the gentleman yield? That was reversed in bad 

previous court decisions. 

Mr. SCOTT. You are absolutely right. Activist judges overturned 

properly enacted State laws requiring segregated schools. 

Mr. SCOTT. Since the Committee is so fixated on marriages, let’s 

try Loving v. Virginia. If we had to wait for Virginia to change the 

law on mixed marriages, would we still be waiting. 

Professor Cleveland, do you see any evidence that Virginia anywhere along—since the 1960’s, would have actually changed the 

law? 

Ms. CLEVELAND. Again——

Mr. SCOTT. I served on the legislature for 15 years. I can tell you 

there is a lot of stuff that we thank the judicial branch for deciding 

for us because we never would have gotten around——

50

Ms. CLEVELAND. Well, in the same way, in the Lawrence case, 

the Texas homosexual sodomy statute had not been enforced by the 

Texas government for years. And, in fact, it had become almost impossible to challenge it because the State of Texas was unwilling 

to enforce it. But the legislature wouldn’t have repealed it. 

Mr. SCOTT. I guess we just want to keep this in context that 

whether we pass this or not won’t have any effect on the—will have 

no legal effect on whatever we do. So I will yield back the time. 

Mr. CHABOT. The gentleman yields back his time. 

The gentleman from Iowa, Mr. King, is recognized for 5 minutes. 

Mr. KING. Thank you. Thank you, Mr. Chairman. And I do appreciate the testimony on the part of the witnesses. 

And so sometimes it is a little hard to keep a little flow of continuity here when we run off to vote, but a number of things in the 

previous testimony occur to me and one is that a number of you 

have been clerks for Supreme Court Justices and you have got a 

sense of how things flow inside those chambers. And so, you know, 

I am watching more and more cases being decided—or I will say, 

considered—that reference and cite foreign law. And it seems to me 

that the incidence of the citing of foreign law is growing significantly and dramatically. 

And so I start my first question with Mr. Dinh. 

I understand you clerked for Justice Scalia. And I know that you 

do a lot of the research and the clerks do a lot of the research. But 

since this incidence of foreign law is coming up consistently more, 

is there a reason for that? Are you digging back into foreign law 

books? Are there people that are staff people that are designated 

to do this type of research? 

For me, it wouldn’t occur to me to look at Chinese law or United 

Kingdom law or Somali law or Zimbabwean law as a resource. Who 

is creative enough to even go look at that law before it is cited? 

Mr. DINH. Thank you very much for that question, sir. 

I did not work for Justice Scalia. I clerked for Justice O’Connor. 

Otherwise, I would not have been looking at foreign law sources. 

But I think your question is a very good one. 

The Courts, in the words of Justice Scalia—then Judge Scalia— are not roving boards of inquiry. They are not there in order to find 

and solve all the problems of the world according to their own life 

and doing their own research on the Internet or in Zimbabwe or 

elsewhere, but rather depend upon the research and the arguments 

presented to them by the lawyers. 

And I frankly go into the third point of my opening statement. 

I frankly do not have very much faith—aside from all of the jurisprudential and democratic objections, I do not have very much faith 

in the ability of domestic judges and lawyers to get foreign law 

right, because at the end of the day, we are not steeped in those 

cultural and legal traditions and we end up cherry-picking the ones 

that support our predelictions. 

Mr. KING. I did hear that part of your testimony—although I was 

not attentive when you were introduced, I did not hear that, Mr. 

Dinh. I apologize. 

Mr. Whelan, Mr. Dinh has testified that he believes that material comes from the attorneys. Would you speculate as to whether 

that is fully the case, or do you believe that there is some research 

51

that is done from inside the Supreme Court chambers as with regard to foreign law? Are all of these citings, can we index those 

back to briefs that have been presented to the Court in these particular cases? 

Mr. WHELAN. Well, I would only be speculating and certainly 

wouldn’t want to speak to anything that I witnessed, though, of 

course, being a clerk for Justice Scalia, I did not witness any of 

that. 

I think what you see now is a dynamic where the Court, six Justices at least, have signaled their strong interest in foreign law as 

a potential resource. So lawyers, in turn, will be looking to provide 

those selective foreign legal authorities that support their positions, 

and Justices who want to cite those materials will do so. And I 

think you have a downward spiral as a result. 

Mr. KING. Thank you. 

And Mr. Rosenkranz. 

Mr. ROSENKRANZ. I would just add to that that the research into 

foreign law is an extremely elaborate and time-consuming process, 

which is another great cost of this trend. So as has been pointed 

out, these sources are found by lawyers, and it takes them hours 

of billable time. 

And the question is, is this a good use of social resources? I think 

probably not. 

Mr. KING. I am watching the clock tick down. I would be very 

interested in Professor Cleveland’s answer. 

And I have something I need to do in the last minute, and that 

is—this is the foreign travel over the last 6 years of the Justices. 

And in this notebook here—the bookmark is the Constitution, by 

the way—is a spread sheet and a chart of the Justices’ foreign travel and a list of where they have gone and who has paid for the 

trips. 

And then—I haven’t done a proper analysis to make a presentation before this Committee, but I can point out that in, for example, June of 2000, Justice Kennedy went to China; and in June and 

July of 2001, Justice Breyer went to China; and in October of 2001, 

Justice Kennedy went back to China; and in September of 2002, 

Justice O’Connor went to China; and then in the Roper case in 

March 1, 2005, all of them cited Chinese law. That is one example. 

And I think history is replete with this. And so it may not be 

that—it may be that the research that is presented is presented by 

attorneys and in the briefs, but it might also be that their respect 

for this foreign law is cultivated on foreign trips, paid for by foreign 

entities. And that is the point I hoped to make. 

I thank you, and I yield back the balance of my time. 

Mr. CHABOT. The gentleman yields back his time. 

The gentleman from Florida, the principal sponsor of the bill, 

along with Congressman Goodlatte, is recognized for 5 minutes. 

Mr. FEENEY. Thank you, Mr. Chairman. I thank all the witnesses. I think this is a fascinating discussion. I refer to it as a national civics lesson about the appropriate role of judges in our system of Government. And my friend from Virginia suggested that all 

we could really hope for with the resolution is to chill certain activities from the bench; and I have to admit that that is entirely 

what some of us intend to do with this. 

52

We would like to chill the Justices right out of article I legislative powers and back into article III. We would like to chill the article II, importing treaties; that we refused to sign, like the 37th 

article, for example, in the Roper case. 

We would like to chill them into respecting a Republican form of 

government in article IV. We would like to chill them out of 

amending the Constitution other than article V. And we would like 

to chill them back into the Supremacy Clause. 

So this is entirely designed to chill certain behavior and activity. 

I have a one-word question and am asking for a one-word answer 

from each of you so we can get to a couple of things very quick. 

Dean Koh has referred to the six-member majority, including 

Justice O’Connor, who intends to retire, as the ‘‘transnationalist 

Justices.’’ and if that is a fair description—and I buy it—of the majority, do we have a term for the three Justices that are remaining 

fixed on the Constitution without reference to foreign law? 

And I will give each panelist, you know, a second or two to come 

up with one. Why don’t we start with Mr. Dinh? 

Mr. DINH. Traditionalist. 

Mr. WHELAN. Two words, American originalist. 

Mr. ROSENKRANZ. Textualist. 

Ms. CLEVELAND. Professor Koh uses ‘‘nationalist.’’ Mr. FEENEY. And you adopt that term, Professor? 

Ms. CLEVELAND. It is a possible term. 

Mr. FEENEY. One of the things I am very interested in is that 

Justice Ginsburg, off the bench, has tried to ragsize the use of references to foreign law in interpreting basic constitutional rights 

among other things. 

And she refers us to the Declaration, and she talks about how 

the Founding Fathers started out with a decent respect for the 

opinions of mankind. But everywhere she gives that talk, she refuses to include the rest of the sentence, which was that because 

of our respect for the opinions of mankind, we are required to, 

quote, ‘‘declare the causes which impel them,’’ meaning the States 

and colonies and people, ‘‘to separation.’’

So our respect was limited to the notion that we owed people a 

discussion, an explanation, of exactly why we were separating ourselves from reliance on foreign law. And I think it is really disingenuous of her to continue to repeat that phrase as justification 

for what she is doing. 

I want to ask a theoretical question, and I would like the three 

folks that sort of agree that Feeney-Goodlatte House Resolution 97 

is an appropriate message to Federal Justices. 

Given the fact that in the Atkins decision we overturned American laws given to us by legislators based on, among other things, 

the Zimbabwe approach to folks with mental disabilities and the 

death penalty, given the fact that in Lawrence we referred to the 

European courts human rights attitudes toward sodomy to again 

overturn not only elected representatives but their own precedent; 

and of course the Roper decision, where the U.N. Convention on the 

Rights of Children, which we have not adopted, which was essentially adopted and ratified for us by the Court. 

Supposing that I were an activist judge who was pro-life, and 

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turning the precedent established in Roe v. Wade, in part, largely 

due to the fact that the attitudes through much of the globe do not 

permit abortion on demand, which is, to some extent, what Roe requires of us? 

If this approach is legitimate jurisprudence—we start with Mr. 

Dinh—do you think it would be inappropriate judicial activity for 

a judge offended by the decision in Roe to look at global attitudes 

of abortion on demand? 

Mr. DINH. It is a very big ‘‘if,’’ but if the ‘‘if’’ holds, then I agree 

with you. And, yes, activism works both ways. And once you open 

up the Pandora’s box of illegitimate sources of law, then it does not 

stop it one way or the other. 

Mr. WHELAN. I have a two-part answer. 

First, Roe is wrong no matter what. You don’t need to look to foreign law to find arguments for that. All Americans ought to recognize that it is time that the American people be restored their 

power to determine what abortion policy ought to be in the States. 

Second, again, though, if you grant your premise, a Justice would 

recognize that the abortion regime that has been imposed on this 

country is a regime more radical than that that exists in any virtually any country in the world. We don’t need to look to parts of 

the world where abortion itself is not lawful generally. Even in Europe, as Mary Ann Glendon has pointed out, the laws there are far 

more moderate than the radical regime we have in this country. 

Mr. FEENEY. Mr. Rosenkranz. 

Mr. ROSENKRANZ. Sir, you are quite right. And I believe that it 

brings us back to Congressman Hostettler’s question in which we 

are left with the distinct impression that the Court is not doing 

this systematically, but is doing it selectively to achieve the results 

that they want to achieve. 

Mr. FEENEY. Professor? 

Ms. CLEVELAND. In the 198Os, the Reagan administration argued to the Court that the right to choose should be limited based 

on foreign precedents. And I think that is an argument that is 

available to attorneys before the Court. 

Mr. FEENEY. Should Justices use it? I am not asking what lawyers can argue; they ought to argue anything that can win if it is 

ethical. But should Justices use it? 

Ms. CLEVELAND. In all of these contexts, the question is part of 

a much broader package of issues that the Court has to consider 

regarding the particular constitutional norm that is presented. 

So in answering that question, I would say that the Court would 

have to look at what the law that it was confronted with was. What 

it was—how it was being urged to modify Roe, how significantly 

that contradicted our established doctrine and precedent; and all of 

these things would go into the consideration of the decision. 

Mr. FEENEY. I thank the panelists and yield to the Chairman. 

Mr. CHABOT. Thank you. The gentleman’s time has expired. 

We are not going to another round, but the gentleman from New 

York has asked to ask one additional question, and we have granted that right. 

Mr. NADLER. Thank you. I appreciate the indulgence of the 

Chair. I just want to ask Mr. Whelan a question. That remark you 

made just a moment ago raised in my mind—you talk about Roe 

54

v. Wade and you say it is it is obvious Roe v. Wade is wrong, all 

Americans should acknowledge that Roe is wrongly cited and that 

it was wrong that the American people presumed because their legislatures ought to decide on the legality of abortions in the States. 

Is that what you said, essentially? 

Mr. WHELAN. That is essentially correct. 

Mr. NADLER. My question is the following: Many people think 

that the real goal of certain legislation such as the—what was the 

bill? I forgot what we call it, the title of the bill to recognize that 

two separate crimes, an assault on a pregnant woman with a fetus? 

Mr. CHABOT. Will the gentleman yield? The Unborn Victims of 

Violence Act? 

Mr. NADLER. The Unborn Victims of Violence Act, yes. 

That the real goal of that is to establish the fetus’ personhood 

and that if you establish the fetus’ personhood under the 14th 

amendment, then under the 14th amendment you cannot deprive 

a person of life, liberty or property without due process of law; and 

that if we were to establish that a person is a—I’m sorry, that a 

fetus is a person under the 14th amendment, then if Roe were to 

be overturned, the rationale might not be that it is simply wrong. 

In deciding that, therefore, the implication is that State legislatures can do what they want one way or the other, but that a fetus 

is a person under the 14th amendment. Therefore, you cannot deprive a person of life, liberty or property without due process of 

law; and therefore, no State legislature nor Congress may permit 

abortion under any circumstances because that would be a violation of the 14th amendment. 

Are you saying that you would regard that as wrong reasoning, 

or you just didn’t think of it when you said that getting rid of Roe

would enable the States to do what they want? 

Mr. WHELAN. Well, I certainly follow that. I think the reasoning 

that you attribute to people is clearly not the correct reasoning. 

I don’t think those who support the Laci Peterson bill are interested in some grand concoction of what the word ‘‘person’’ means 

in the 14th amendment, nor do I think that anything this Congress 

does statutorily to protect unborn human beings—beings that are, 

after all, members of the species Homo sapiens from the moment 

of conception—would have any impact on the word ‘‘person’’ in the 

14th amendment. 

I have testified as to my position that unborn human beings are 

not persons within the meaning of the 14th amendment. And, you 

know, the so-called ‘‘conservative’’ approach to the abortion issue, 

those who oppose Roe, recognize merely that the issue ought to be 

restored to the people to decide. 

I think, frankly, with all respect, the rest is scare-mongering. 

Mr. NADLER. I don’t know if it is scare-mongering. It just scares 

me. 

Thank you very much. 

Mr. CHABOT. The gentleman yields back. 

In follow-up to the gentleman’s point, if I could make one point, 

I think many people believe that all the acrimony that has gone on 

for years relative to the abortion debate, much of it could have 

been avoided had it not been the Supreme Court that acted on its 

own. If this had occurred because the elected representatives of the 

55

people made this decision one way or the other thing, then I 

think——

Mr. NADLER. Different States. 

Mr. CHABOT. —it would have been much less acrimonious, and 

people would not have felt that the decision was just handed down 

and forced upon us, and that the people had no real input on such 

an important decision in this country. 

So I think that the Supreme Court—and I obviously think Roe

was wrong and would like to see it overturned; I have never made 

any secret of that I am strongly pro-life, but nonetheless, I think 

that decision was most unfortunate, not because of so many lives 

that——

The gentleman from Iowa is recognized. I was starting to ramble 

there anyway, so perhaps Mr. King got me off the hook. The gentleman from Iowa. 

Mr. KING. I thank the Chairman. I will try not to belabor this 

point. I appreciate the privilege of making a quick point. 

It is a question of curiosity, that I would very much like to 

present to Professor Cleveland particularly, because I didn’t get to 

you. But it is not the same question, and it is a point that I think 

is a central point here that has not been made. 

And that is, the Constitution is a contract that was ratified by 

the several States in roughly 1789 when most of the consensus—

and that contract is a clearly defined document that says, we have 

an agreement amongst the States, and every State that enters the 

Union signs on to that contract. It is an irrevocable contract; and 

that was resolved by the Civil War when Lincoln took that stand. 

And yet today, we have come so far away from the text of the 

Constitution that I would defy any modern-day legal scholar, let 

alone some future historian-archaeologist to try to divine the Constitution by reading through whatever mass of case law is out 

there. It seems to me to be impossible, even for a strict constructionist court, to work their way back to the Constitution given this 

mass of case law that we have out here. 

What is the meaning of the Constitution now, today? Has it just 

been a transitional document that got us to this point in history 

where the judges now run society? Is it an artifact of history, Professor Cleveland? 

Ms. CLEVELAND. I think that is a bigger question than can be answered right here. But I think it is important to recognize that the 

Constitution is very sparsely drafted. It uses some very general 

language, deliberately, because it was intended to survive through 

the centuries. 

So the cruel and unusual punishments clause, you know, we 

were talking about the Roper case. The Court is trying to figure out 

how you decide what is ‘‘cruel’’ and what is ‘‘unusual.’’ One way you 

decide what is ‘‘unusual’’ is to look at what is an uncommon punishment. I don’t think that their decision in Roper strayed significantly from that text at all. I think it was quite honest to it. 

‘‘Due process,’’ similarly, is a concept that is general; it changes 

over time with conceptions of right and wrong. And the drafters of 

the Constitution deliberately wrote a document that would have 

the flexibility to tolerate change in human existence. 

56

Mr. KING. Let’s take an easy one. Let’s talk about Kelo where 

they struck the word ‘‘for public use’’ from the fifth amendment. 

That one should be an easy one for us to get some consensus on. 

Would you agree that that was a sharp amendment to the Constitution that took place with impunity by the Supreme Court? 

Ms. CLEVELAND. I haven’t read the case. I would prefer not to 

comment on it. 

Mr. KING. Thank you. 

Mr. CHABOT. We will make this the last response if we can, Mr. 

King. We won’t be having a second or third round here. 

Mr. WHELAN. Kelo is a great example of how the left on the 

Court ignores rights that are in the Constitution and makes up 

rights that aren’t. 

Mr. KING. Thank you, Mr. Chairman, and thank you minority 

party. I yield back. 

Mr. CHABOT. We want to thank all the Members for being here 

today. We want to thank especially our panel for their excellent 

testimony in helping us to consider this very important issue. 

So if there is no further business to come before the Committee, 

we are adjourned. Thank you. 

[Whereupon, at 6:20 p.m., the Subcommittee was adjourned.] 

(57)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE TOM FEENEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF FLORIDA

Six U.S. Supreme Court Justices—approvingly described as ‘‘transationalists’’ by 

Yale Law Dean Harold Koh—have increasingly expressed disappointment in the 

Constitution we inherited from the Framers and disdain for certain laws enacted 

by democratically elected representatives. 

With disturbing frequency, these Justices have simply imported law from foreign 

jurisdictions, looking for more agreeable laws or judgments in the approximately 

191 recognized countries in the world. 

They champion this practice and fancy themselves participants in some international scene of jurisprudential thought. In recent speeches, several Justices have 

referred to the ‘‘globalization of human rights’’ and assumed a ‘‘comparative analysis’’ when interpreting our constitution. 

Mr. Goodlatte, I, and others on this Committee hope to start a great civics debate 

on the constitutionally appropriate role of judges in this Republic. This is why we 

asked Chairman Chabot to conduct hearings on this subject. 

If Americans believe that the laws of another nation are superior to ours, they 

bring that idea to the attention of their elected representatives and move that policy 

through the legislative process. But if foreign laws are imposed on Americans by 

five unelected Justices, then rule by ‘‘philosopher kings’’ has replaced rule by ‘‘We 

the People.’’ And we will have forgotten a reason for our nation’s birth. For in the 

Declaration of Independence’s list of grievances against King George III, is: ‘‘He has 

combined with others to subject us to a jurisdiction foreign to our Constitution, and 

unacknowledged by our laws.’’ Despite our country’s fierce protection of its sovereignty for over 200 years, judges 

at the highest levels of the federal judiciary cannot resist rationalizing otherwise 

baseless interpretations of American law by reference and incorporation of international law. The latest example is Roper v. Simmons, where the Supreme Court 

used foreign law to determine whether the death penalty for a 17 year old murderer 

violated the Eighth Amendment. 

Justice Kennedy’s majority opinion included an extended discussion of the relevance of foreign law to interpreting the Eighth Amendment. Not limiting himself 

to international law, Justice Kennedy went further to cite international political 

opinion opposing the death penalty. Never mind that back in America, a majority 

of states with the death penalty subject 17 year old murderers to it. Or in my home 

state of Florida, 70% of our voters favored a state constitutional amendment to permit such an application of this penalty. 

To support overturning decades of precedent, the Supreme Court found it necessary to cite the International Covenant on Civil and Political Rights and the 

United Nations Convention on the Rights of the Child. Yet it ignored that the United 

States has specifically reserved the question of the execution of juveniles in signing 

and ratifying the former and has not ratified the latter. 

I’ve reintroduced the Reaffirmation of American Independence Resolution to again 

stress the sense of the House that international influence should be removed from 

judicial interpretation of our Constitution. This resolution states: 

That it is the sense of the House of Representatives that judicial interpretations regarding the meaning of the Constitution of the United States should not be based 

in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of 

the original meaning of the Constitution of the United States. 

Despite their high rhetoric, transnationalists are results-oriented judges who cherry pick through foreign law and precedent to find reasons to overturn the democratVerDate 0ct 09 2002 12:54 Sep 01, 2005 Jkt 000000 PO 00000 Frm 00061 Fmt 6601 Sfmt 6621 G:\WORK\CONST\071905B\22494.000 HJUD1 PsN: 22494
58

ically expressed views of their fellow citizens. As Judge Posner has noted, this unrestricted citation of non-United States law ‘‘would mean that any judge wanting a 

supporting citation has only to troll deeply enough in the world’s Corpus Juris to 

find it.’’

In a telling irony, a consistent application of such jurisprudence would result in 

strict limitations on abortion and free speech—anathemas to most if not all 

transnationalists. Should America rely on national laws of say Ireland in determining whether there is a constitutional right to abortion? Or follow the lead of 

Zimbabwe where journalists must be licensed by the government? 

Ultimately, transnationalists fundamentally misunderstand their country’s origins. The American people founded and then repeatedly defended this sovereign republic to ensure that they and not some outside entity—be it King George III, the 

European Court of Human Rights, or the United Nations—controlled their destiny. 

Yes, we borrowed from other nations’ legal traditions, especially the Anglo-Saxon 

rule of law. But we always did so through the democratic process found in our Constitution. Other countries are free to pursue their notions of ‘‘justice.’’ That’s why 

so many of our ancestors fled those lands to come here. 

The Reaffirmation of American Independence Resolution simply confirms that tradition and our nation’s sovereignty. 

PREPARED STATEMENT OF THE HONORABLE BOB GOODLATTE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA

Mr. Chairman, thank you for holding this important hearing. 

As you know, recently there has been a deeply disturbing trend in American jurisprudence. The Supreme Court, the highest court in the land, has begun to look 

abroad to international law instead of our own Constitution as the basis for its decisions. 

Supreme Court Justice Sandra Day O’Connor made a troubling prediction last fall 

that the Supreme Court will rely ‘‘increasingly on international and foreign courts 

in examining domestic issues...,’’ as opposed to our Constitution, as the basis 

for its rulings. 

Several western nations have begun to rely upon international conventions and 

U.N. treaties when interpreting their own constitutions, which is a frightening prospect, given that most of these materials are crafted by bureaucrats and non-governmental organizations with virtually no democratic input. The new Supreme Court 

trend to cite these types of foreign authorities is a threat to both our nation’s sovereignty and the democratic underpinnings of our system of government. Our nation’s founders were well aware of this danger when they drafted the Declaration 

of Independence, which declares that King George had ‘‘combined to subject us to 

a jurisdiction foreign to our constitution and unacknowledged by our laws.’’

The Supreme Court’s trend is particularly troubling because it comes at a time 

when the Court is deciding such fundamental issues as the very wording of the 

Pledge of Allegiance, the meaning of the First Amendment, and other issues that 

are uniquely American. Our nation’s judges, and Supreme Court justices, took an 

oath to defend and uphold the U.S. Constitution—and it is time that Congress remind these unelected officials of their sworn duties. 

That is why I joined with my friend and colleague, Congressman Tom Feeney, to 

introduce the Feeney/Goodlatte resolution, which expresses the sense of Congress 

that the Supreme Court should not cite foreign authorities when interpreting the 

U.S. Constitution. 

This resolution sends a clear message that the Congress is not willing to simply 

stand idly by and see our nation’s sovereignty weakened. 

I believe the judicial branch is guaranteed a very high level of independence when 

it operates within the boundaries of the U.S. Constitution. However, when judges 

and justices begin to operate outside of those boundaries, Congress must respond. 

We must be steadfast guardians of the freedoms that are protected in the Constitution of the United States of America. 

Thank you again, Mr. Chairman, for holding this important hearing.

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