decisions and over time expect our courts to be aware of their courts' interpretations of legal concepts having a common source of inspiration. For the many nations around the world whose own constitutions have been inspired in part by that of the United States, and whose judges believe that we share commitments to ideas of liberty, freedom and equality, the U.S. Court's occasional consideration of foreign court decisions is, in a sense, a recognition of common judicial commitments-often inspired by the example of the United States-to the protection of individual rights. And on the current Court, Chief Justice Rehnquist,3 as well as Justices Breyer,4 Ginsburg, Kennedy,6 Scalia and Stevens, have referred to or noted foreign or international legal sources in their opinions in U.S. constitutional cases. It is thus not only a traditional legal practice but one that has been used by justices who otherwise have very different views.

5

Finally, the questions of what sources are to be considered in giving meaning to the Constitution in adjudication is one that is, in my view, committed by the Constitution to the judicial department. Marbury v. Madison famously explained: "It is emphatically the province and duty of the judicial department to say what the law is." 5 U.S. 137, 177 (1803). A core aspect of determining what the law of the Constitution is requires consultation of relevant and illuminating materials—from the enactment and ratification history, from interpretations by state and federal courts of the provision or of analogous state constitutional provisions, from the course of decisions by legislatures and executive officials about what action is required or permitted, and from the considered judgments of other courts and commentators on the same or analogous questions. All of these kinds of sources have been and may be considered when the justices conclude that they shed legal light on the problem before them.

Efforts by the political branches to prescribe what precedents and authorities can and cannot be considered by the Court in interpreting the Constitution in cases properly before it would be inconsistent with our separation of powers system. It could be seen both here and elsewhere as an attack on the independence of the courts in performing their core adjudicatory activities. Around the world, the most widely emulated institution established by the U.S. Constitution has been the provision for independent courts to engage in judicial review of the constitutionality of the acts of other branches and levels of government. Congress should be loath even to attempt to intrude on this judicial function, with respect to a practice that dates back to the founding, and at a time when the United States is deeply engaged in promoting democratic constitutionalism in countries around the world, including provision for independent courts to provide enforcement of constitutional guarantees.

Mr. CHABOT. Thank you, Professor.
Professor Ramsey.

STATEMENT OF MICHAEL D. RAMSEY, PROFESSOR OF LAW, UNIVERSITY OF SAN DIEGO LAW SCHOOL, SAN DIEGO, CA Mr. RAMSEY. Mr. Chairman and Members of the Committee, thank you for the opportunity to express my views on the matter. In my written statement, I've explained in detail why I think H. Res. 568 is an appropriate response to some Supreme Court decisions and academic commentary, and I will make a brief summary here.

3 See Planned Parenthood v. Casey, 505 US 833, 945 n. 1 (1992) (Rehnquist, C.J. dissenting) (describing German and Canadian constitutional cases on abortion). But cf. Atkins v. Virginia, 536 U.S. 304, 324–35 (2002) (Rehnquist, C.J., dissenting).

4 See, e.g., Foster v. Florida, 537 U.S. 990, 991-93 (2002) (Breyer, J., dissenting from denial of certiorari).

5 See Grutter v. Bollinger, 123 S. Ct. 2325, 2347 (2003) (Ginsburg, J., concurring) (referring to international covenants that provide for temporary measures of affirmative action).

6 See Lawrence, 123 S. Ct. at 2481, 2483 (discussing European Court of Human Rights cases invalidating laws prohibiting adult homosexual conduct).

7 See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 381-82 (1995) (Scalia, J., dissenting) (referring to Australia, Britain and Canadian prohibitions on anonymous campaigning as bearing on whether such a prohibition protects or enhances democratic elections). But cf. Printz v. United States, 521 U.S. 898, 921 n. 11 (1997) (Scalia, J.)

8 See Atkins v. Virginia, 536 U.S. 304, 316 n. 21 (2002) (referring to views of the "world community" on imposition of the death penalty on the mentally retarded as reflected in an amicus brief of the European Union).

No one seriously disputes that reference to foreign materials is entirely appropriate under certain circumstances. When foreign courts have previously interpreted the same legal texts that a U.S. court is considering, of course it is informative, though not dispositive to see what other courts have said on the matter. For example, Justice Scalia recently argued that the Supreme Court in interpreting a provision of the Warsaw Convention on air carrier liability should consider what foreign courts have said about that same provision of the Warsaw Convention. Further, foreign materials are, of course, important in understanding the content of customary international law when U.S. courts are called upon to apply it and may provide background to understand the context in which U.S. laws were enacted.

The new use of foreign materials being proposed, and to some extent adopted by the Supreme Court in a few recent decisions, however, is entirely different. For example, in Lawrence v. Texas, the recent case striking down Texas' anti-sodomy law, the Court relied in part on Dudgeon v. United Kingdom and related cases of the European Court of Human Rights, but these two courts were interpreting entirely distinct legal texts. The Supreme Court was interpreting the due process clause of the 14th amendment adopted in 1868 in the United States. The European court was interpreting the European Convention for the protection of human rights and fundamental freedoms, a treaty among European countries adopted in 1953.

More over, as the Court in Dudgeon made clear, the language in the two documents and the interpretation the courts have placed upon that language is totally different. Under the due process clause, according to the Court's prior precedent, the question was whether anti-sodomy laws had a rational basis, essentially whether they're a reasonable exercise of the state's police power. Under the European Convention, the question is whether anti-sodomy laws were "necessary to protect public health and morals," which the European court explicitly said meant “a pressing social need" and not merely "reasonable."

In sum, what the European court said about the text of the European Convention was not informative about the meaning of the text of the 14th amendment because those are two totally different legal texts.

As Dungeon and Lawrence illustrate, and contrary to the statements of at least one Supreme Court justice, Justice Breyer, there is no "global legal enterprise in constitutional law." That's because there is no single global constitution which the world's courts are collectively engaged in interpreting as they are, in contrast, to the case of the Warsaw Convention. There are only a series of distinct legal texts with different language adopted in different places, times, and contexts. Sometimes these may have some relationship to one another, but often they do not.

When U.S. courts look to foreign materials in the way the Supreme Court did in Lawrence, they are not using foreign materials to aid in the interpretation of a specific legal text, but instead are looking to foreign statements of moral and social policy to inform their own thinking about moral and social policy. Further, no one is seriously proposing that U.S. courts should in all cases or even

in difficult cases adopt the moral and social policy of foreign jurisdictions, nor that U.S. courts should consider the moral and social policy of all foreign jurisdictions.

Such an approach would require enormous cutbacks in the constitutional rights of Americans, because the U.S. recognizes many rights that are rarely recognized abroad. For example, most European countries in the European court allow much greater restrictions on free speech. They allow much greater government support for religion than permitted by our establishment clause. They allow more interference with religious practice than does our free exercise clause. They have fewer rights to bear arms and to own property. They lack many of our criminal procedure protections, such as the exclusionary rule. They lack many of our protections for abortion rights.

Advocates of the Lawrence approach do not want foreign practices to force them to give up the rights that they favor. As a result, the Lawrence approach is inherently selective. Indeed, in Lawrence itself, the Court looked at some jurisdictions which had repealed or overturned anti-sodomy laws while ignoring many jurisdictions that retain anti-sodomy laws. Just a few years earlier, in Stenberg v. Carhart, the Court overturned a Federal ban on lateterm abortions under the same provision of the U.S. Constitution that was at issue in Lawrence without considering the likelihood that many foreign jurisdictions, including in Europe, also ban lateterm abortions.

It seems clear that the justices and the academic commentators who support them want to use foreign materials not on the basis of any principle appropriate, but merely when they happen to coincide with the justice's own moral and social preferences.

Finally, I agree that it is appropriate that we in the United States consider the differing approaches of foreign jurisdictions in formulating moral and social policy, just as States within the United States look to experiences and practices of other States in formulating their laws; however, this is a job for Congress and the State legislatures, not for the courts. The role of the courts is to determine the meaning of legal texts enacted by the people and their representatives. That is done by looking at the intended meaning of the text and perhaps by the evolving moral and social values of American society.

The decision whether to change American values, whether by reference to foreign values or the internal values of a lawmaker, is one for legislatures and for the people and not for the courts. It is inconsistent with the rule of law for U.S. courts to pick and choose among the moral and social policies of selectively determined foreign jurisdictions to justify imposing moral and social values upon the American people that are not reflected in U.S. law.

Thank you.

[The prepared statement of Professor Ramsey follows:]

PREPARED STATEMENT OF MICHAEL D. RAMSEY

I thank the Committee for the opportunity to express my views on the proper use of foreign materials by U.S. courts.1 My opinion is, in sum, as follows. Foreign materials are relevant to the interpretation of U.S. law in numerous circumstances, most notably where foreign courts have interpreted the same or parallel legal texts as those under consideration by the U.S. court. However, some recent Supreme Court decisions and, even more so, some recent claims by attorneys, law professors and individual Justices-have gone too far in giving weight to foreign materials as, in effect, persuasive statements of social policy. This is problematic in several respects. Consideration of the views and experiences of foreign jurisdictions is surely appropriate in the formulation of moral and social policy, but it is properly a function of Congress and state legislatures, not the courts. If U.S. courts adopt a principled rule that they will be guided by the moral and social policy of foreign jurisdictions across the board, the result is likely to be a substantial reduction of rights in the United States, since in many respects the United States protects rights than are rarely recognized elsewhere. If U.S. courts instead cite foreign materials selectively, to implement only moral and social policy choices with which they agree, it will become obvious that these citations are not being used to elucidate interpretations of legal texts, but rather as cover for the Justices to implement their own policy preferences. This is not consistent with the rule of law or the proper role of the judiciary.

GENERAL PRINCIPLES

I begin with a few examples of the appropriate use of foreign sources. First, U.S. courts may be called upon to interpret the same language that foreign courts have previously interpreted. While a foreign court's view of that language is obviously not binding, it may be persuasive, or at least informative, on the question of what the language means. This is most common in the case of treaties. For example, in a recent case the Supreme Court was called upon the interpret the meaning of the word "accident" in the Warsaw Convention on air carrier liability.2 As Justice Scalia argued (in dissent), it would be appropriate to consider what foreign courts had decided when faced with the question of the meaning of the word “accident" in the Warsaw Convention.3

Second, a U.S. statute or constitutional provision may be derived from a prior law or constitutional provision of a foreign nation, or adopted in an international context that is relevant to its meaning. In that instance, it is important to understand the meaning of the provision upon which the U.S. language is based or the context in which it was adopted-and that may be done by considering foreign materials. For example, many provisions of the U.S. Bill of Rights are based upon parallel provisions in the English Bill of Rights of 1688 or other provisions of pre-existing English law, so citations to English decisions interpreting those provisions are surely appropriate.5

Third, U.S. statutes are sometimes intended as implementations of international law (as is the case, for example, of many provisions of the Foreign Sovereign Immunities Act), and the U.S. Constitution has several provisions that refer to international law itself or to international law concepts such as treaties and warmaking. In such cases, a U.S. court should investigate the international law that the U.S. law was intended to implement, an inquiry that could be assisted by looking at what foreign institutions had said about the relevant provisions of international law.6 Similarly, U.S. courts are sometimes called upon to implement international law directly (as in the interpretive canon that ambiguous statutes are construed not to

1 Parts of this statement are based on a forthcoming article in the American Journal of International Law. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, Amer. J. Int'l L. (forthcoming 2004).

2 Olympic Airways v. Husain, No. 02-1348, Feb. 24, 2004.

3"We can, and should, look to decisions of other signatories when we interpret treaty provisions. 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. . . . Finally, even if we disagree, we surely owe the conclusions reached by appellate courts of other signatories the courtesy of respectful consideration." Id., slip op. at 4 (Scalia, J., dissenting).

4 Foreign courts sometimes cite U.S. decisions for this reason: some foreign constitutions used the U.S. Constitution as a model.

5 See Harmelin v. Michigan, 495 U.S. 956 (1990) (using English decisions and practice to understand context of the Eighth Amendment).

6 For example, I have argued that in determining the meaning of the Constitution's declare war clause, it is important to understand the international law meaning of "declaring" war in the eighteenth century. Michael D. Ramsey, Textualism and War Powers, 69 U. Chicago L. Rev. 1543 (2002).

violate international law). Again, in determining the content of international law, U.S. courts might appropriately look to decisions of foreign institutions.

These examples are an illustrative not exhaustive list. There are likely many other situations in which reference to foreign materials by U.S. courts would be natural and non-controversial. They share a common attribute: each involves a situation in which the U.S. court is asking the same question about the same legal text or concept as foreign courts or other institutions have previously asked.

A second category of references to foreign materials is more controversial, but, in my view, usually appropriate if done cautiously. These references arise when the constitutionality of a U.S. law can be informed by facts existing in a foreign country. For example, the Supreme Court has interpreted the First Amendment's protection of free speech to require, in general, that content-based restrictions of speech must be necessary to serve a compelling government interest (or some similar language).? The government might thus assert that a challenged regulation is "necessary" to prevent some great harm; but if other countries do not have the regulation and yet suffer no great harm, that might be evidence that the regulation is not necessary (and hence is unconstitutional). Similarly, under the Due Process Clause, the Supreme Court has said that laws not implicating fundamental rights need only have a “rational basis" to be constitutional. Events and experiences in foreign countries might suggest that concerns advanced by the government in support of a law are in fact rational, because they have actually arisen in foreign countries. Thus, in Washington v. Glucksberg the U.S. Supreme Court looked at practice in the Netherlands, which has experience with legalized euthanasia, in deciding that the state's concerns about permitting euthanasia were at least rational.8

This sort of reliance on foreign experiences has dangers, because it may be difficult to translate foreign experiences into U.S. contexts. A rule, or absence of a rule, that has one effect in a foreign country may, because of differing cultures, have a very different effect in the United States. Nonetheless, treated with appropriate caution, foreign experiences may be relevant as factual data points, where courts are called upon to evaluate the likely practical effects of a law or action. As Professor Gerald Neuman has said, they are preferable to mere “armchair speculation" about possible effects.9

A third, and somewhat more problematic category, arises if a U.S. court decides that the existence or non-existence of a right or duty in U.S. law depends upon how widely that right or duty exists in foreign nations. U.S. law might explicitly make its scope dependant upon the existence of a parallel rights or duties in foreign countries (as, for example, in reciprocal trade statutes or reciprocal inheritance laws). It is also possible that the drafters of a U.S. provision might implicitly intend that the scope of that provision should depend upon whether similar rules exist elsewhere. For example, Justice Scalia and others have argued, in the context of constitutional provisions turning upon the existence of "fundamental rights," that a right fully embedded in the history and traditions of the United States might still not be "fundamental" in the constitutional sense if it is not widely recognized abroad. 10 I am not sure this is often an appropriate methodology, because it usually does not rest on any close connection to the intended meaning of the statute or constitutional provision at issue, and I am skeptical that there are many provisions in U.S. law whose drafters intended that they depend on the scope of rights elsewhere. To be sure, if a U.S. law or constitutional provision directs (explicitly or implicitly) that its scope depends upon the existence or non-existence of parallel rights elsewhere, then it is appropriate to use foreign materials to assist in the implementation of the U.S. provision, but such intent would need to be determined on a provision-by-provision basis.

Although the second and third categories I have described above seem somewhat more problematic than the first, each of them shares the common attribute that foreign materials are used to effectuate the original meaning of the U.S. provision in question. A distinct category-and to my mind an illegitimate one-is when the U.S. law in question does not direct the U.S. court to consider foreign judgments, but the court does so anyway, in the service of an "evolving" or "living" interpretation of the law.

I do not propose here to enter into the debate over whether interpretation should always be limited to an inquiry into the original meaning of a text, or whether

7 New York Times v. United States, 403 U.S. 713 (1971).

8 Washington v. Glucksberg, 521 U.S. 702, 721-724 (1997).

9 Gerald Neuman, The Uses of International Law in Constitutional Adjudication,

Int'l. L. (forthcoming 2004).

Am. J.

10 Thompson v. Oklahoma, 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting);Palko v. Connecticut, 302 U.S. 319 (1937); Hurtado v. California, 110 U.S. 516 (1884).