The Appropriate Role of Foreign Judgments in the Interpretation of American Law

Published July 18, 2005

United States House of Representatives
Committee on the Judiciary, Subcommittee on the Constitution
Hearing on “H. Res. 97 and the Appropriate Role of Foreign Judgments
in the Interpretation of American Law”

July 19, 2005

Testimony of M. Edward Whelan III

Good afternoon, Chairman Chabot. Thank you very much for inviting me to testify before you and your subcommittee on this important subject.


I am Edward Whelan, president of the Ethics and Public Policy Center. The Ethics and Public Policy Center is a think tank that for three decades has been dedicated to exploring and explaining how this country’s foundational principles ought to inform and shape public policy on critical issues.

The Ethics and Public Policy Center’s program on The Constitution, the Courts, and the Culture, which I direct, explores competing conceptions of the role of the courts in our political system. This program focuses, in particular, on what the battle over the proper role of the courts means for American culture writ large—for the ability of the American people to function fully as citizens and to engage in responsible self-government.

Two weeks ago Americans celebrated the 229th anniversary of the Declaration of Independence. In that document, representatives of the thirteen United States of America proclaimed that these States were “dissolv[ing] the Political Bands which [had] connected them with” Great Britain. The “History of repeated Injuries and Usurpations” that the Declaration recited against King George III included the charge that “He has combined with others to subject us to a Jurisdiction foreign to our Constitution.”

In March 2004 this subcommittee held an outstanding hearing on the perceived threat by six Supreme Court Justices to combine with each other to subject American citizens to interpretations of the United States Constitution that give weight to contemporary foreign laws and legal decisions. I broadly embrace the views expressed by Professors John O. McGinnis, Jeremy Rabkin, and Michael D. Ramsey at that hearing. These witnesses carefully distinguished between proper and improper uses of foreign legal materials by American courts. They explained that consideration of the views and experiences of foreign jurisdictions is entirely appropriate in the formulation of moral and social policy, but that it is the function of Congress and state legislatures, not the courts, to make moral and social policy. They also discussed why a principled use of foreign legal materials would likely lead to a substantial reduction of rights in the United States, whereas an unprincipled use would merely provide cover for the Justices to implement their own policy preferences. Either way, they explained, reliance on foreign legal opinions would undermine the proper American understanding of what is fundamentally distinctive about our constitutional framework.

The transcript of last year’s hearing suggests that some took solace in the understanding that the Court’s use of foreign law was incidental at worst. Unfortunately, two developments since last year’s hearing refute that understanding. These developments demonstrate that the threat posed by the Court’s use of foreign law is real and growing. Rather than reiterate the points powerfully made by Professors McGinnis, Rabkin, and Ramsey, I will focus my written testimony on these developments and what they signify and portend.

As I will discuss, in its March 1, 2005, ruling in Roper v. Simmons, a five-Justice majority of the Supreme Court explained at length its view that the “overwhelming weight of international opinion against the juvenile death penalty” provided “respected and significant confirmation” for its ruling that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment’s protection against “cruel and unusual punishment.” And a sixth Justice, although in dissent, approved of the majority’s resort to foreign legal materials. Moreover, although the majority argued that there was precedent in the Eighth Amendment context for regarding foreign and international authorities as “instructive,” there is nothing in the majority’s approach that would limit use of these materials to this context. Indeed, in recent months, at least two Justices in the Roper majority have, in public appearances, attempted to offer their own justifications for freewheeling resort to foreign authorities on a broad range of constitutional questions. The striking feebleness of their justifications provides ample testament to the illegitimacy of their enterprise.

House Resolution 97 is a fit and proper step in response to the Supreme Court’s improper reliance on foreign law. The members of the House of Representatives have the right and duty to uphold the Constitution and to encourage the Supreme Court to construe the Constitution properly. By making clear that judicial interpretations of the Constitution “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,” House Resolution 97 would be a faithful exercise of that right and duty.

1. Roper v. Simmons

The most significant development since this subcommittee’s March 2004 hearing is the Supreme Court’s March 1, 2005, ruling in Roper v. Simmons. In that case, a five-Justice majority overturned the Court’s 1989 ruling in Stanford v. Kentucky, 492 U. S. 361 (1989) and ruled that the Eighth Amendment’s bar on “cruel and unusual punishments” prohibits the execution of a brutal murderer who was 17 years old at the time of his crime.

a. Facts

The facts of Roper warrant special attention, as they starkly illustrate how dismissive Justice Kennedy’s majority opinion is of the constitutional power of the people to decide through their state representatives what laws ought to govern their own states. My summary and my specific quotations are drawn entirely from Justice Kennedy’s majority opinion.

When he was 17, Christopher Simmons planned, instigated, and committed a brutal murder. “Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends …. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.”

In the middle of the night, Simmons and a friend “entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, ‘Who’s there?’In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.”

“Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.”

“By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim’s body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman ‘because the bitch seen my face. ’”

Arrested the following day, Simmons confessed to the murder and performed a videotaped reenactment at the crime scene.

At trial, Simmons did not call any witnesses in his defense in the guilt phase. At the penalty phase, the trial judge instructed the jurors that they could consider Simmons’ age as a mitigating factor, and Simmons’ counsel argued that Simmons’ age mitigated his responsibility and should make a “huge difference” to the jurors. The jury recommended, and the trial judge imposed, the death penalty.

b. The Majority Ruling

Justice Kennedy’s majority opinion, which was joined by Justices Stevens, Souter, Ginsburg, and Breyer, set for itself the task of ascertaining whether execution of an offender who was 16 or 17 years old at the time of his capital crime measured up to “the evolving standards of decency that mark the progress of a maturing society.” Kennedy’s determination proceeds in three parts.

First, Kennedy undertakes to engage in “a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. This factor, together with the infrequent use of the death penalty for 16- and 17-year-olds in those states that authorize it and the “consistency in the trend toward abolition of the practice,” leads him to conclude that the “objective indicia” provide “sufficient evidence” that “our society” views 16- and 17-year-olds as “‘categorically less culpable than the average criminal. ’”

Second, in an “exercise of our own independent judgment,” Kennedy then explains three “general differences between juveniles under 18 and adults [that] demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders”: (a) “[A]s any parent knows” and as “scientific and sociological studies … tend to confirm,” the young more often have a “lack of maturity” and “an underdeveloped sense of responsibility.” (b) “[J]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” (c) “[T]he character of an juvenile is not as well formed as that of an adult.” For these reasons, the “penological justifications for the death penalty apply to [juveniles] with lesser force than to adults.”

Third, and of most direct bearing on this hearing, Kennedy then finds “respected and significant confirmation” for his conclusion that the Constitution bars the death penalty for juvenile offenders “in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Notably, Kennedy finds that the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child, which “contains an express prohibition on capital punishment for crimes committed by juveniles under 18,” supports his conclusion that the juvenile death penalty is unconstitutional. Kennedy concludes his discussion with this assertion:

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

c. O’Connor’s dissent

In her dissent, Justice O’Connor opines that no “genuine national consensus” has developed on whether capital punishment should be available for 17-year-old offenders. O’Connor, however, agrees with the majority’s proposition that “the existence of an international consensus … can serve to confirm the reasonableness of a consonant and genuine American consensus.”

d. Scalia’s dissent

Justice Scalia’s devastating dissent (joined in full by Chief Justice Rehnquist and Justice Thomas) cannot fairly be summarized in brief and should be read in full by anyone interested in this case. But I will nonetheless attempt to highlight Scalia’s core response to the majority’s three major points:

First, Scalia explains that it makes no sense to count states that have no death penalty together with states that prohibit merely the execution of offenders who were younger than 18, because the former set of states have expressed no position that offenders under 18 deserve special immunity. In Scalia’s colorful analogy: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.” It follows that “[w]ords have no meaning if the views of less than 50% of death penalty States can constitute a national consensus.”

Second, Scalia criticizes the majority for “proclaim[ing] itself sole arbiter of our Nation’s moral standards,” rather than discerning those standards from the “practices of our people.” He points out that Kennedy “pick[s] and choos[es]” the scientific and sociological studies that support his position and that none of these studies even “opines that all individuals under 18 are unable to appreciate the nature of their crimes.” He explains that Kennedy’s “startling conclusion” that juries “cannot be trusted with the delicate task of weighing a defendant’s youth” “undermines the very foundations of our capital sentencing system.”

Third, Scalia confronts head-on the remarkable confirming role that Kennedy awards the “world community”:

  • “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage.”
  • As for Kennedy’s reliance on Article 37 of the U. N. Convention on the Rights of the Child: “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position.”
  • “[T]he basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand. In fact the Court itself does not believe it.” Scalia proceeds to point out that the Court has never sought to follow foreign law on matters ranging from the exclusionary rule, to church-state relations, to abortion. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
  • With respect to Kennedy’s closing oration: “I do not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment. More importantly, however, the Court’s statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage. ’To the contrary, they are cited to set aside the centuries-old American practice—a practice still engaged in by a large majority of the relevant States—of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.” (Emphasis and brackets in original.)

2. Public Declarations by Justices

Since this subcommittee’s March 2004 hearing, at least two Justices have publicly defended—and, indeed, advocated—the use of foreign law in support of rulings on the meaning of the Constitution. The inability of these Justices to ground that practice in legitimate legal principle and the lack of any discernible limits on their employment of that practice fully justify the alarms expressed by members of this subcommittee about that practice.

a. Justice Ginsburg

On April 1, 2005, Justice Ginsburg delivered a speech to the American Society of International Law that defended the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution. The title of her speech—“‘A decent Respect to the Opinions of [Human]kind’: The Value of a Comparative Perspective in Constitutional Adjudication”—nicely encapsulates the core flaws in her position.

First is her thinly disguised contempt for the Framers. Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, did she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.”

The rhetorical centerpiece of Ginsburg’s speech is a crude attack against originalists—those who adhere to the original understanding of the Framers’ Constitution and of the various amendments to it. Ginsburg absurdly insinuates that the position taken by Chief Justice Rehnquist and Justices Scalia and Thomas that constitutional rulings should not be based on foreign developments has some special kinship with Chief Justice Taney’s notorious ruling in the Dred Scott case.

Taney’s opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney’s opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court’s first use of the modern judicial activist’s favorite tool, “substantive due process,” to invalidate a statute—the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: “I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings,” wrote Justice McLean. “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it,” explained Justice Curtis in exposing Taney’s deviation from originalism.

In attacking originalism as “frozen in time,” Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times. She claims that judges “honor the Framers’ intent ‘to create [sic] a more perfect Union’” when they rewrite the Constitution to comport with their own understandings of the needs of the day. But it is “We the People of the United States,” not judges, to whom the Constitution looks to “form a more perfect Union.”

The second basic flaw in Ginsburg’s speech is signaled by her elusive subtitle. What exactly does a “comparative perspective” in constitutional adjudication mean, and what is its value?Addressing a group of international lawyers, Ginsburg resorts to kindergarten talk—“we can learn from others,” “we can join hands with others,” we should “share our experience”—but never even attempts to explain how a foreign court’s decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution. She emphasizes that she does not regard foreign decisions as “controlling authorities.” But she clearly leaves open the possibility that those foreign decisions could be the dispositive tipping factor in any particular case.

Preserving her own flexibility to pick and choose opportunistically, Ginsburg also utterly fails to delineate any principle that would dictate when foreign decisions should come into play and what weight they should have. In short, she has no response to Scalia’s criticism: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”

When Ginsburg’s position is clear, her understanding is muddled. Ginsburg points out that the Framers understood that the United States “would be bound by ‘the Law of Nations,’ today called international law.” But even setting aside her badly confused and simplistic equation of the Law of Nations with international law, the Constitution’s conferral of power on Congress “[t]o define and punish … Offenses against the Law of Nations” makes clear that it is up to Congress, not judges, to determine which obligations under the Law of Nations should apply domestically.

Similarly, Ginsburg points out with pride that her separate opinions in the Michigan racial-preference cases cite two United Nations Conventions—one that the United States has ratified, and one that “sadly” it “has not yet ratified”—as evidence that the international understanding of racial preferences supports her application of the Equal Protection Clause. But the very fact that she sees no effective difference between a ratified treaty—which (whether or not it has any domestic effect) is part of “the supreme Law of the Land” under the Constitution—and an unratified convention demonstrates the incoherence of her views.

Ginsburg also specifically expresses her disapproval of H. Res. 97 and asserts that “it is disquieting that [H. Res. 97 and its Senate counterpart] have attracted sizable support.”

b. Justice Breyer

In January 2005, Justice Breyer and Justice Scalia engaged in a public debate on the constitutional relevance of foreign court decisions. The transcript of that debate is available online at http://domino. american. edu/AU/media/mediarel. nsf/1D265343BDC2189785256B810071F238/1F2F7DC4757FD01E85256F890068E6E0?OpenDocument. My quotations below are taken from that transcript.

In his remarks, Breyer made explicit what was fairly implicit in Ginsburg’s speech—namely, that it is impossible to develop any rules on when the Court should rely on foreign court decisions in construing the Constitution and which decisions it should look to. (“[I]f you’re going to develop a jurisprudence of when to refer to a non-binding decision of a foreign court, I mean, it’s—I’ll agree that isn’t going to work.”) Nonetheless, he offered the following propositions in support of invoking foreign court decisions in construing the Constitution. I respond very briefly to each.

1. “[I]n some of these countries there are institutions, courts that are trying to make their way in societies that didn’t used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They’re having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don’t we cite them occasionally?They will then go to some of their legislators and others and say, ‘See, the Supreme Court of the United States cites us. ’ That might give them a leg up, even if we just say it’s an interesting example.”

  • The idea that Supreme Court Justices should craft their opinions with an eye towards influencing internal political struggles in foreign countries is truly a remarkable misconception of the judicial role.

2. “I think I may have made what I call a tactical error in citing a case from Zimbabwe—not the human rights capital of the world. But it was at an earlier time—Judge Gubei (ph) was a very good judge. So I had written this. And of course I looked—I don’t think that’s controlling. But I’m thinking, Well, on this kind of an issue you’re asking a human question, and the Americans are human—and so is everybody else. And I don’t know, it doesn’t determine it, but it’s an effort to reach out beyond myself to see how other people have done—though it does not control.” (Emphasis added.)

  • Of course foreigners are human. That proposition does not remotely explain how a foreign court’s decision on how a foreign law measures up to a foreign charter can or should have analytical value (or any other force) in construing our Constitution.

3. “Well, it’s relevant in the sense that you have a person who’s a judge, who has similar training, who’s trying to, let’s say, apply a similar document, something like cruel and unusual or—there are different words, but they come to roughly the same thing—who has a society that’s somewhat structured like ours. And really, it isn’t true that England is the moon, nor is India. I mean, there are human beings there just as there are here and there are differences and similarities.…And the fact that this has gone on all over the world and people have come to roughly similar conclusions, in my opinion, was the reason for thinking it at least is the kind of issue that maybe we ought to hear in our court, because I thought our people in this country are not that much different than people other places.” (Emphasis added.)

  • It is a foundational principle of this nation that “all Men are created equal [and] are endowed by their Creator with certain unalienable Rights.” In this fundamental respect, and many more incidental respects, it is clearly the case that the American people “are not that much different” from foreigners. One obvious relevant difference, however, is that “We the People of the United States” are governed by the Constitution of the United States, and people who live in other countries are governed by their own countries’ laws. Breyer’s observation has no weight in explaining why provisions in our Constitution—which was established in an exercise of the principle that “Governments … deriv[e] their just Powers from the Consent of the Governed”—should be construed in light of foreign laws or legal decisions that either reflect the consent of the governed in those countries or were imposed on them.


No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who nonetheless resort to these materials do so because they embrace an essentially lawless—i.e., 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 unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure under 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.

It follows that the broader long-term solution to the problem that H. Res. 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 they bore at the time they were promulgated and that it does not permit them to impose their own policy preferences on the grand (or minor) questions of the day.

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