Rep. Cliff Stearns
U.S. House of
Law in U.S.
June 26, 2006
Mr. Speaker, with the Fourth of July
celebration next week, it is important to again remember why we fought for
independence, namely, to free ourselves from foreign domination.
I fear that the Supreme
Court's appeal to foreign legal practice has headed us down a slippery slope,
down which our rapid descent could hurt the values we hold so dear.
In fact, to measure the standards of
our Constitution by foreign opinion is to believe the false premise that
other nations are evolving toward better answers than we are capable of
finding ourselves. If we begin thinking that way, surely we will cease to be
In 2003 in Lawrence
five Supreme Court justices created a new right to sodomy based largely on
legal precedents from the European Convention of Human Rights. In his
dissenting opinion on this ruling, Justice Scalia
agreed with what I am trying to point out in this speech by saying, he “expects
and fears that the court's use of foreign law in the interpretation of our
Constitution will continue at an accelerating pace.”
Later, in the 2005 Roper v. Simmons
case, the United States Supreme Court found juvenile execution to be
unconstitutional. In deliberations, Justice Sandra Day O'Connor claimed that
the United States
is the only country in the world that continues to give the juvenile death
penalty official sanction. She allowed international law to override her own
decision-making abilities. In the majority decision, Justice Kennedy stated
that using foreign law “does not lessen our fidelity to the
Constitution or our pride in its origin to acknowledge that the affirmation
of rights by other nations and people simply underscores the centrality of
those same rights within our heritage of freedom.”
Though it may be proper to acknowledge
the weight of foreign opinion against the juvenile death penalty, should it
be the basis for American law? Justice Ginsburg, one of the most prominent
advocates of using international opinion in U.S. courts, recently delivered a
speech at the Constitutional Court of South Africa. She essentially concluded
that she and other justices have the authority to change the Constitution as
they see fit, deferral to foreign laws and rulings being a key part of their
creative process. She insisted that U.S. jurists honor the Framers'
intent to “create a more perfect union,” which would allow
justices to alter the Constitution, to keep it from being “fixed
forever by the 18th century understanding.”
My colleagues, the Framers of the
Constitution did not give justices the authority to create a more perfect
union; in fact, they purposely made changing the Constitution a very
difficult process, to ensure that these changes were thoroughly vetted and
absolutely necessary. Any amendments require a two-thirds vote of both Houses
of Congress and three-fourths of State legislatures to convene constitutional
conventions to ratify them. But, as we have seen, some justices believe they
have the power to amend the Constitution to suit every whim.
Foreign laws and decisions simply
provide a convenient justification for some justices to almost thumb their
noses at the Constitution and the legislative branch.
Foreign legal standards can help U.S. courts
determine the meaning behind treaties, foreign law might even aid us in
interpretation of our Constitution as the Framers were of English descent;
but there needs to be a distinction between appropriate and inappropriate
consultation, aside from justices' personal opinions.
In an address to the American
Enterprise Institute earlier this year, Justice Scalia
said, “If there was any thought absolutely foreign to the Founders of
our Country, it was the notion that we Americans should be governed the way
Europeans are.” In the Federalist Papers Number 46, to take just what
one example, James Madison speaks contemptuously of the governments of Europe, which are afraid to trust the people with arms.
Are we now to revise the second amendment because what these other countries
During his confirmation, Justice
Roberts pointed out, “Looking to foreign law for support is like looking
out over a crowd and picking out your best friends.” A judge relying on
foreign law in their decision-making can hand-pick a precedent based on a
predetermined outcome of their choice.
So, Mr. Speaker, I believe that our
courts should rely on our history, our laws, and most importantly our
Constitution to help them reach a decision, especially when it comes to
domestic issues. That is why we must focus our energies on the other body on
confirming quality judges with a healthy respect for the Constitution like Justice
Roberts and Justice Alito.
See the original in the Congressional
Record on Pages H4523
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