we've got a vote on the floor. So we're going to have to leave here shortly. So any of the members who would like to address that. Professor Ramsey.

Mr. RAMSEY. Yes, very quickly, and I think this responds to some of the concerns that have been expressed by others. I think that the greatest check on the courts is that the courts must not only make decisions, but they must explain their decisions in rational discourse that is publicly available for criticism by all and that the public is, indeed, invited to criticize what the Court has said that it is doing.

Mr. GOODLATTE. Just as we are doing today?

Mr. RAMSEY. Yes, exactly, and I think that that's why I think that this measure is entirely an appropriate exercise of Congress' power and is not a violation of separation of powers as some have suggested. When editorial writers, when law professors, and when members of other branches of the Government take up the things the Supreme Court has written to justify their decisions and say this does not seem like an adequate justification to us, that is one of the great checks in our system we have on courts.

Mr. CHABOT. Any other comments from the panel? Professor?

Ms. JACKSON. I want to express agreement with the importance as a check, of the giving of public judgments and reasons, which not only Members of Congress can criticize, but newspapers and ordinary citizens, and I want to raise a grave caution about the idea that the impeachment power ever would be used because of disagreement with a decision. Again, removal of judges whose decisions the Government doesn't like is a characteristic of countries that I don't think we want to move our system towards, and the protection of the independence of the Judiciary, whether we agree or disagree with their decisions, is something I think is very important.

Mr. CHABOT. Thank you.

The gentleman's time has expired. The last questioner this afternoon will be the gentleman from Alabama, Mr. Bachus, who is recognized.

Mr. BACHUS. Thank you.

Let me say that I am enthusiastically for this resolution, and I commend the gentleman from Virginia.

Professor Jackson, one thing that I'm curious about, when I talk to my constituents when they talk about this issue, and you talk about a foreign law, let's just say a law in Germany, none of my constituents elect those legislative bodies. They don't have one vote. They don't have one iota of influence in that legislative proc

ess.

Isn't that really the essence of democracy? We elect our Representatives, our Congressmen, our State legislators to make laws for us. The German law is made by Germans, people that were elected or appointed by Germans. Isn't that a cause of concern to you that our courts would be citing decisions where there is no input by our voters? Isn't the vote what this country has, our democracy?

Ms. JACKSON. If the Court were treating a foreign law as binding, I would agree this raises very serious questions of democratic self-governance.

Mr. BACHUS. Well, let me ask you this: Why would the court even refer to a law in a decision, a foreign law, "a foreign law?" Why would it even be in the opinion if they weren't focusing on it?

Ms. JACKSON. Well, sometimes the Court, as I mentioned earlier, looks at foreign law to say we don't want to be like that; we're different from that; we can learn.

Mr. BACHUS. What if they looked at it and

Ms. JACKSON. If they looked at it and said, "We protect liberty and so does the European Court of Human Rights

Mr. BACHUS. But don't we have enough laws here without looking at some foreign laws that were formed by people that weren't elected, weren't appointed by Americans?

Ms. JACKSON. We do have a lot of law here, and the great bulk of the opinion of the Supreme Court in Lawrence v. Texas involves discussion of U.S. cases, Federal cases, and also of State cases.

Mr. BACHUS. But in Lawrence, you bring up in Lawrence. In Lawrence, they reversed what had been a long-standing law. They reversed an opinion, and they did so and they cited a foreign case. You say it wasn't persuasive. Why did they bring it up if they weren't focused on it?

Ms. JACKSON. Well, actually the decision

Mr. BACHUS. Was it irrelevant?

Ms. JACKSON. No. The decision that they reversed, which was Bowers v. Hardwick, in that case, the Chief Justice, one of the judges in the majority, had actually referred to what western civilization did as part of the basis for his thinking in the earlier case to uphold the sodomy laws. So, in part, the Lawrence v. Texas decision citation to Europe was to say Bowers v. Hardwick misunderstood what western civilization and Europe was about, and in that sense, sort of cleaning up the record for accuracy, it's seems entirely appropriate.

Courts refer to a lot of material that is not binding as such, but which helps them understood the issue before them.

Mr. BACHUS. But that's my very point. It's influencing them, and it shouldn't, and let me say this: If you ask one of your students what is the real estate law, what is the issue on this that you're teaching, and they came back to you and quoted foreign-would you prefer that they quote American law or German law?

Ms. JACKSON. They need to know American law. If we're training them in American law schools, there's no question.

Mr. BACHUS. Right.

Ms. JACKSON. But if the question is how to decide an unsettled issue in the State of New York, for example, it would be good lawyering for them to say, "Well, even though voters in Minnesota don't vote in New York, let's see how they did it there."

Mr. BACHUS. Yes.

Ms. JACKSON. Maybe we'll agree. Maybe we'll disagree. But that tradition of looking to compare law

Mr. BACHUS. But that's because they are under the same constitution, the U.S. Constitution.

Ms. JACKSON. That's right.

Mr. BACHUS. They're not under some

Ms. JACKSON. That's correct, but we see the State courts doing this all the time when they're interpreting their State constitutions.

Mr. BACHUS. Wouldn't you prefer-if you gave a student, you told them to respond in 300 words, wouldn't you prefer an all-American response?

Ms. JACKSON. It depends what the question was. I would certainly want my student to know American law.

Mr. BACHUS. Well, I will tell you that the voters elect 100 percent American legislators. You know, I don't have a constituent or a voter that votes German. We're interested in American law, and I think it's a terribly dangerous trend. I think it undermines our democracy.

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

I want to thank the panel for very enlightening testimony here from all four of the members. We appreciate it very much.

As I had said earlier, all Members would have 5 days to supplement their remarks, and the gentleman from Virginia's opening statement will be entered for the record.

If there is no further business to come before the Committee, we're adjourned. Thank you very much.

[Whereupon, at 12:53 p.m., the Subcommittee was adjourned.]

APPENDIX

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA

Mr. Chairman, I thank you for holding this hearing today. It is important that we examine this issue because with growing frequency, the Supreme Court of our country is quietly undermining the sovereignty of our nation. Our Court is turning beyond our borders, and beyond the laws of our land, to decisions of foreign judicial tribunals when deciding American constitutional and statutory cases. Six of the nine Supreme Court justices have written or joined opinions that cited foreign authorities to justify their decisions. Lower Federal courts are beginning to follow this disturbing trend.

Article VI of the Constitution clearly states that the Constitution and federal statutes are the supreme law of the land. As a Member of Congress I swore an oath to defend the Constitution and pass laws that respect it; each of our Supreme Court justices also raised their right hand and swore an oath to defend the Constitution and interpret the law in a manner that preserves it.

In a case focusing on allowable delays of execution (Knight v. Florida) Supreme Court Justice Stephen Breyer said he found "useful" court decisions on the matter in India, Jamaica, and Zimbabwe.

Will he also find useful Zimbabwe law when interpreting the First Amendment? Last month Zimbabwe's highest court upheld a law requiring all journalists to be licensed by the government or face criminal charges. The law says that any journalist who works without a license from the state-appointed Media and Information Commission can be prosecuted, and may face up to two years in prison if found guilty. Dozens of journalists have been prosecuted under the Act, which has also been used to prevent publication of Zimbabwe's only major independent daily newspaper, The Daily News.

If the Supreme Court of the United States is insistent on citing foreign laws to justify their activist opinions, at the very least, they ought to tell us which foreign laws they like and which ones they don't like. Do we adopt the law of countries hostile to the U.S.? Do we adopt only the laws of our friends? What about those friendly today and hostile tomorrow?

What will be next? Will the Supreme Court look to the Netherlands when deciding our drug laws? In Saudi Arabia laws on marriage say a man is legally entitled to up to four wives. Will our justices be influenced by those laws?

The constitutions of India, Jamaica, Germany, and France are younger than I am. The Constitution of Zimbabwe is younger than my son. Why would we look to the laws of other countries when our Constitution is the longest working constitution in the world? Our Constitution was adopted by our founding fathers, defended by our mothers and fathers, and protected today by our sons and daughters. Our Constitution is interpreted and given life by our legislatures and judges either appointed or elected by citizens of our country based on the laws of our country. Throughout 200 years, it has withstood civil war, world war, natural disaster, and political turmoil. It is the fortress that protects the freedoms that we all too often take for granted.

I have joined with Congressman Bob Goodlatte and Congressman Tom Feeney to cosponsor the resolution before the Subcommittee today. The Reaffirmation of American Independence Resolution expresses the outrage of the American people at being made subject to the laws of foreign countries-countries where laws are not made through elected representatives of the American people, let alone even crafted through a democratic process. The resolution will reaffirm what our founding fathers made clear: the laws of dictators and tyrants will not govern America. With