United State House of Representatives
Washington, DC 20510

Re: House Resolution 97 (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?

Dear Member of Congress:

On behalf of the American Civil Liberties Union and its more than 500,000 members, we urge you to oppose H. Res. 97, which condemns courts' use of international law when interpreting the United States Constitution. As the nation's largest public interest law firm, we are troubled by this legislation because it seeks to improperly pressure the judiciary and impede its ability to make independent and well reasoned decisions. Legislative direction to U.S courts as to how to interpret U.S. law treads dangerously on the separation of powers doctrine. Consideration of international law is deeply embedded in the history of decision-making in U.S. courts. Not only would H. Res. 97 advocate a dramatic alteration of the constitutional separation of powers, it would also inhibit effective judicial review and hinder American efforts to promote democracy abroad.

I. Consideration of international law has historically been an important element of judicial review.

Thomas Jefferson once proclaimed the law of nations as "an integral part ... of the laws of the land."[1] John Jay, the first Chief Justice of the United States Supreme Court, noted in Chisolm v. Georgia that the United States ""had, by taking a place among the nations of the earth, become amenable to the laws of nations.""[2] The Supreme Court recognized in 1804 that ""an act of congress ought never to be construed to violate the law of nations if any other possible construction remains.""[3] In accordance with these early mandates, American courts have often undertaken analyses of foreign and international law, and these analyses are featured in many of this nation's most important historical precedents.

II. Foreign precedents are never treated as binding on U.S. courts interpreting the U.S. Constitution.

H. Res. 97 is motivated by the unfounded concern that international law is binding upon courts in the United States. In a recent speech to the American Society of International Law, Justice Sandra Day O'Connor stated: "Although international law and the law of other nations are rarely binding upon our decisions, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts." Foreign precedent is analyzed by U.S. courts in three main ways.

First, U.S. courts have found that when foreign courts have applied standards comparable to ours under comparable circumstances, their experiences may ""cast an empirical light on the consequences of different solutions to a common legal problem.""[4] An example of this use is Justice Scalia's opinion in McIntyre v. Ohio Election Comm'n, in which he described Australian, Canadian, and English statutes banning anonymous campaign speech in order to suggest that such bans need not impair democracy.[5] The analysis of foreign precedent in this way is both practical and vital for federal judges called upon to address complex legal questions.

Second, U.S. courts have looked to the international community when a constitutional concept necessarily requires courts to articulate a community standard, such as what constitutes "cruel and unusual," "due process of law," and "unreasonable searches and seizures." Regarding the Eighth Amendment, Justice Blackmun has written: "If the substance of the Eighth Amendment is to turn on the 'evolving standards of decency' of the civilized world, there can be no justification for limiting judicial inquiry to the opinions of the United States."[6] Indeed, this has been the case since the first federal courts looked to the law of nations to define community standards; since then, innumerable Supreme Court decisions have looked to the international community when defining a community-based standard in contexts as diverse as the obsolete nature of the felony murder rule[7], the constitutionality of criminalizing assisted suicide[8], and the illegitimacy of conducting medical experiments on unwitting soldiers.[9] All of these decisions are consistent with the intent of the framers of the Constitution, who drafted the Constitution in a manner that directly calls for the consideration of foreign standards.

Third, U.S. courts have looked to foreign precedent when interpreting statutes so as to interpret them in a manner consistent with international norms. The United States shares a common legal heritage, tradition, and history with many foreign constitutional systems. Accordingly, constitutional concepts like liberty, equal protection, and privacy are defined in accordance with their meaning to all countries sharing this legal history. U.S. courts have recognized that construing these and other terms in ignorance of these global precedents would inevitably generate conflicts and controversies with our closest global allies. As such, U.S. courts have determined that, when appropriate, they should construe constitutional concepts in light of foreign interpretations to allow the United States to avoid deviating widely from global norms.

The three main uses of foreign precedent have two things in common: they are is deeply embedded in the history of the United States judiciary, and they are practices which do not bind the United States to act based upon foreign law. Furthermore, where international law fails to adequately recognize a constitutionally-protected right, international law cannot be relied upon to diminish such a right in cases pending in U.S. courts. The analysis of foreign precedent is practical, useful, and has occurred throughout our nation's history.

III. H. Res. 97 poses a devastating attack on the separation of powers and independent judiciary.

For over 200 years the federal judiciary has been a check on legislative and executive action. Independent judicial review has been one of the defining features of American democracy since Chief Justice John Marshall's famous declaration in Marbury v. Madison that "[i]t is emphatically the province and duty of the judicial department to say what the law is.""[10] The independent judiciary is now under attack by H. Res. 97. By taking the extraordinarily harmful step of denying the federal courts of the ability to analyze foreign precedent, H. Res. 97 suggests that the Supreme Court should be denied its historical role as the final authority on resolving differing interpretations of federal statutes and the U.S. Constitution.

By resolving to eliminate a method used by judges to interpret the law, this Resolution threatens to upset the delicate balance between the branches of the federal government that has served our nation well. We strongly urge that you reject this resolution in keeping with the historical roles of Congress and the courts in our democratic system.

IV. H. Res. 97 sets a dangerous precedent for Congressional encroachment on the judiciary.

Having Congress tell judges they cannot consider foreign precedent would itself set a dangerous precedent. There are many sources of law that may influence a court's decision, even if those sources are not binding. To strip the courts of the ability to consider them is to strip them of the ability to make the best decision possible, and to subject judicial decision-making to the vagaries of the political process. Every time the majority party of Congress disagrees with a court decision, it may pass a resolution advocating that the courts be stripped of the ability to consider sources of law with which Congress disagrees. This sets a bad precedent and has the potential to intrude on the powers of the judiciary.

V. Consideration of international law is not an ideological tool.

Many Supreme Court justices analyze and reference foreign precedent in their legal opinions, whether the justice is considered liberal, conservative, or moderate. In fact, almost every justice sitting on the Supreme Court today has observed foreign precedent when interpreting U.S. law. Chief Justice Rehnquist did so in Washington v. Glucksberg, in which he noted that "[i]n almost every State-indeed, in almost every western democracy-it is a crime to assist a suicide,"[11] and in Planned Parenthood v. Casey, in which he cited abortion decisions by the West German Constitutional Court and the Canadian Supreme Court in noting foreign disagreement with Roe v. Wade.[12] Justice Scalia cited Australian, Canadian, and English statutes banning anonymous campaign speech to demonstrate that such bans need not impair democracy.[13] Justice Thomas mentioned the voting systems of Belgium, Cyprus, Lebanon, New Zealand, West Germany, and Zimbabwe in assessing race consciousness in the American voting system.[14] Justice O'Connor cited the Nuremberg Military Tribunals to place into historical context the legitimacy of medical experimentation on humans without their consent.[15]

The present attack on the judiciary's use of foreign precedent is spurred by its use in certain opinions. Proponents of the resolution attack a vital element of judicial analysis because they disagree with the outcome of a Supreme Court case. Such an approach is not constant with our history or common practice of judges of all political stripes.

One of the main cases cited by proponents of H. Res. 97 is Lawrence v. Texas, in which the Supreme Court invalidated Texas's sodomy law as unconstitutional. In his majority opinion, Justice Kennedy noted the oddity of the Texas law in an international landscape where sodomy laws no longer exist. However, the Supreme Court also cited foreign precedent in Reynolds v. United States, in which the Court pointed out that "[p]olygamy has always been odious among the northern and western nations of Europe" in a decision affirming the prohibition on polygamy.[16] In other words, recognition of the practices of foreign nations is not a tool of liberal, activist judges; rather, it is one way that all judges have of noting when the United States is out of step with much of the rest of the world.

All Supreme Court justices recognize that the United States is not isolated from the rest of the world but rather is part of it, and that it is damaging to assume otherwise. For that reason, many Supreme Court justices have at some point looked to foreign precedent for guidance and to place issues in their proper global context.

VI. H. Res. 97 strikes a serious blow to American credibility and respect around the world.

H. Res. 97 threatens the credibility of American democracy not only in the United States but also abroad. Acknowledgment and analysis of foreign sources of law by U.S. courts enhances our credibility in promoting democratic governance by demonstrating respect for our democratic allies and acknowledging the commonalities between all democracies. Furthermore, a strict separation of powers and independent judiciary are two of the most significant aspects of democratic systems we attempt to promote abroad; American credibility would be irreparably undermined by the passage of legislation that challenges the independence of the judiciary in the United States.

In conclusion, we believe that H Res. 97 is misguided and harmful. The resolution is motivated by an unfounded fear that American courts treat international law as binding in the United States when in fact American courts never treat foreign precedents as binding. The resolution represents a vast departure from the traditional roles of Congress and the judiciary by purporting to have Congress dictate to judges what sources of law they can consider when they make constitutional judgments-a core function of the judiciary. Finally the resolution threatens to harm American credibility both at home and abroad. For these reasons, we urge you to oppose House Resolution 97.

Sincerely,

Caroline Fredrickson
Director

LaShawn Warren
Legislative Counsel

Cc: House Judiciary Committee

Footnotes

[1] Letter from Thomas Jefferson, Secretary of State, to M. Genet, French Minister (June 5, 1793), quoted in 1 JOHN BASSETT MOORE, DIGEST OF INTERNATIONAL LAW 10 (1906).
[2] 2 U.S. (2 Dall.) 419, 474 (1793).
[3] Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).
[4] Knight v. Florida, 528 U.S. 990, 9 (1999) (Breyer, J., dissenting from denial of certiorari).
[5] 514 U.S. 334, 381 (1995) (Scalia, J., dissenting).
[6] Harry A. Blackmun, The Supreme Court and the Law of Nations, 104 YALE L.J. 39, 48 (1994)
[7] See Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982) (noting that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe.").
[8] Washington v. Glucksberg, 521 U.S. 702, 710, 718 n.16, 785-87 (19) (Rehnquist, C.J.) (declaring that "[i]n almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide," noting that "other countries are embroiled in similar debates" concerning physician-assisted suicide, and citing the Supreme Court of Canada, the British House of Lords Select Committee on Medical Ethics, New Zealand's Parliament, the Australian Senate, and Colombia's Constitutional Court).
[9] United States v. Stanley, 483 U.S. 669, 710 (1987) (O'Connor, J., concurring in part and dissenting in part) (relying on Nuremberg Military Tribunals in arguing against medical experimentation on humans without their consent).
[10] 5 U.S. 137 (1803)
[11] 521 U.S. 702, 710, 718 n.16, 785-87 (1997).
[12] 505 U.S. 833, 945 n.1 (1992) (Rehnquist, C.J., concurring in part and dissenting in part). Justice Rehnquist has also stated that ""now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process."" William H. Rehnquist, Constitutional Courts--Comparative Remarks (1989), reprinted in GERMANY AND ITS BASIC LAW: PAST, PRESENT AND FUTURE--A GERMAN-AMERICAN SYMPOSIUM 411, 412 (Paul Kirchh of & Donald P. Kommers eds., 1993).
[13] See McIntyre v. Ohio Election Comm'n, 514 U.S. 334, 381 (1995) (Scalia, J., dissenting).
[14] See Holder v. Hall, 512 U.S. 874, 906 n. 14 (1994) (Thomas, J., concurring).
[15] United States v. Stanley, 483 U.S. 669, 710 (1987) (O'Connor, J., concurring in part and dissenting in part).
[16] 98 U.S. 145, 164 (1878).