Domestic, Not Foreign
By Sen. John Cornyn
March 28, 2005
Our process for selecting federal judges has unfortunately become increasingly controversial & divisive in recent years. That’s largely because courts are departing further & further from our laws & traditions & injecting themselves further & further into our nation's most sensitive social & political issues, where courts simply don't belong. But whatever one's personal views may be with respect to the various controversial rulings that’ve been issued in recent years, surely all Americans can at least agree that U.S. courts must decide U.S. cases on the basis of U.S. law & U.S. precedent, not the positions of foreign governments & foreign courts. Yet that’s precisely what’s happening according to legal scholars, observers, & the justices themselves.
Through a series of recent rulings, the U.S. Supreme Court has essentially determined that our criminal laws & criminal policies are informed, not only by our Constitution & the policy decisions of the American people through their elected representatives, but also by the rulings of foreign courts & the practices & laws of foreign governments. Indeed, in a series of recent cases, the U.S. Supreme Court has actually rejected its own prior precedents in part because foreign governments or courts have expressed disagreement with those precedents.
For example, in Penry v. Lynaugh (1989), the U.S. Supreme Court held that a state may impose the death penalty on convicted criminals regardless of their IQ, if the state so chooses, but in Atkins v. Virginia (2002), the Court reversed its earlier ruling in part because the Court was concerned about "the world community" & specifically the views of the EU.
Similarly, in Bowers v. Hardwick (1986), the Court held that each state retains the discretion to determine whether certain kinds of conduct, long considered immoral under our longstanding legal traditions, should or shouldn’t remain illegal, but in Lawrence v. Texas (2003), the Court again reversed itself, this time in part because it was concerned about the European Court of Human Rights & the European Convention on Human Rights.
Likewise, in Stanford v. Kentucky (1989), the Court concluded that 16 & 17 year-olds may be subject to the death penalty, if a state chooses to do so, but just last month in Roper v. Simmons, the Court reversed itself yet again, in part because of treaties the U.S. has never even ratified, & because of the views of foreign countries not shared by the people of Missouri & numerous other states. Still other opinions from Supreme Court justices have relied upon the legal judgments of foreign courts all across the globe, such as Jamaica & Zimbabwe.
Today the Court considers whether to take yet another step down this path. The case involves the state of Texas, & I’ve filed an amicus brief asking the Court to respect its own precedents & to defer to the people of Texas in their administration of criminal justice consistent with the Constitution. The other side in the case argues in effect, however, that the International Court of Justice can effectively overrule a decision of the U.S. Supreme Court & of the Texas government. In Breard v. Greene (1998), the Court made clear that criminal defendants, like all parties in litigation, may not sit on their rights & then bring up those rights later as a stalling tactic. That basic principle of our legal system, the Court explained, isn’t undermined just because the accused happens to be a foreign national covered by the Vienna Convention on Consular Relations. Yet even this basic principle of American law may be reversed, after today's oral argument in Medellin v. Dretke.
This is, to put it lightly, not how our legal system is supposed to work. To the contrary, our Founding Fathers fought the Revolutionary War precisely in order to stop foreign governments from telling us what our laws say. The Declaration of Independence specifically complains that the American Revolution was justified because King George "has combined with others to subject us to a jurisdiction foreign to our constitution, & unacknowledged by our laws." It was "We the People of the United States" who ordained & established a Constitution of the U.S., one that includes a mechanism by which only "We the People of the U.S." can change it if necessary. And of course, every federal judge & justice swears an oath to "faithfully & impartially discharge & perform all the duties incumbent upon me...under the Constitution & laws of the United States."
I fear, however, that today some judges may be departing so far from American law, American principles, & American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments & foreign cultures, because there’s nothing in this country left for them to cite for support. What's more, citing foreign law in order to overrule U.S. policy is especially offensive to our constitutional democracy, because foreign lawmaking is in no way accountable to the American people.
Last week, I introduced Senate Resolution 92, similar to a resolution introduced by Rep. Tom Feeney (R-FL) last month. It expresses the sense of the Senate that judicial determinations regarding the meaning of our Constitution shouldn’t be based on the judgments, laws, or pronouncements of foreign institutions, except where such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of our Constitution.
The issue of judicial confirmations has divided senators & that’s unfortunate. But surely we can all agree that our courts must follow our laws, not the laws of foreign governments & the rulings of foreign courts.
— The Honorable John Cornyn is a U.S. senator from Texas & a member of the Senate Judiciary Committee. He served previously as Texas attorney general & state supreme court justice.
Here's a copy of his speech on the Senate floor:
Cornyn Introduces Legislation to Keep Foreign Influence Out of U.S. Courts
March 21, 2005
Washington—U.S. Sen. John Cornyn (R-TX), a member of the Senate Judiciary Committee, has introduced a resolution, S. Res. 92, expressing the sense of the Senate that judicial decisions regarding the U.S. Constitution shouldn’t be influenced by other countries. The resolution states that determinations regarding the meaning of the Constitution of the U.S. shouldn’t be based 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 of the U.S.
“Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be, losing control to foreign courts & foreign governments,” Cornyn said. “And if this can happen with criminal law, it can also spread to other areas of our government & of sovereignty.”
Cornyn filed a brief with the U.S. Supreme Court in the Jose Medellin murder case arguing that if a criminal is found guilty of a brutal crime in Texas, sentenced under U.S. law, & the procedure is upheld by the Supreme Court, those courts shouldn’t be reversed by an international court. In the brief, filed in late February, Cornyn said U.S. cases should be decided by American law, American courts, & American jurors, & U.S. sovereignty shouldn’t be subverted by international law. On March 28, the Supreme Court will hear oral arguments regarding the authority of the International Court of Justice (ICJ) to bind U.S. courts, & the Court’s decision in the matter will have major ramifications for previous convictions, as well as future prosecutions of foreign nationals who commit crimes in the U.S. In particular, the court will consider the case of a Mexican national, Jose Medellin, who was convicted of the 1993 rape & murder of two Texas teens and sentenced to death.
For a pdf file of the resolution, S. Res. 92, visit: www.cornyn.senate.gov. Following is the complete text of Sen. Cornyn’s remarks that were entered into the Senate Record on Sunday, March 20:
Mr. President, I rise to express concern over a trend that, some legal scholars & observers say, may be developing in our courts, a trend regarding the potential influence of foreign governments & foreign courts in the application & enforcement of U.S. law. If this trend is real, then I fear that, bit by bit, case by case, the American people may be slowly losing control over the meaning of our laws & of our Constitution. If this trend continues, foreign governments may even begin to dictate what our laws & our Constitution mean, & what our policies in America should be.
In a series of cases over the past few years, our courts have begun to tell us that our criminal laws & criminal policies are informed, not only by our Constitution & by the policy preferences & legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts. It’s hard to believe, but in a series of recent cases, the U.S. Supreme Court has actually rejected its own prior precedents, in part because a foreign government or court has expressed its disagreement with those precedents. Mr. President, with your indulgence, I’ll offer just a few of the most recent examples.
Until recently, the U.S. Supreme Court had long held that the death penalty may be imposed on individuals regardless of their IQ. The Court traditionally left that issue untouched, as a question for the American people, in each of their states, to decide. That was what the Court said in a case called Penry v. Lynaugh (1989).
Yet because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has now seen fit to take that issue away from the American people. In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the commonwealth of Virginia could no longer apply its criminal justice system & its death penalty to an individual who’d been duly convicted of abduction, armed robbery, & capital murder, because of testimony that the defendant was “mildly mentally retarded.” The reason given for the complete reversal in the Court’s position? In part because the Court was concerned about “the world community” & the views of the E.U.
Take another example. The U.S. Supreme Court has long held that the American people, in each of their states, have the discretion to decide whether certain kinds of conduct that has long been considered immoral under our longstanding legal traditions should or shouldn’t remain illegal.
In Bowers v. Hardwick (1986), the Court held that it’s up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again, because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has seen fit to take that issue away from the American people. In 2003, in a case called Lawrence v. Texas, the U.S. Supreme Court held that the state of Texas could no longer decide whether its criminal justice system may fully reflect the moral values of the people of Texas. The reason given for the complete reversal? This time, the Court explained, it was in part because it was concerned about the European Court of Human Rights & the European Convention on Human Rights.
Here’s yet another example, from just a few weeks ago. Until this month, the U.S. Supreme Court had always held that 16 & 17-year olds, like John Lee Malvo, the 17-year-old who terrorized the Washington area in a sniper spree that left 10 people dead, may be subject to the death penalty, if that’s indeed the will of the people. The Court said as much in a case called Stanford v. Kentucky (1989). Yet because some foreign governments have frowned upon that ruling as well, the U.S. Supreme Court, on March 1 of this year, saw fit yet again to take this issue away from the American people. In Roper v. Simmons, the U.S. Supreme Court held that the state of Missouri could no longer apply its death penalty to 16 & 17-year olds convicted of murder, no matter how brutal & depraved the act, & no matter how unrepentant the criminal. The reason given for this most recent complete reversal? In part because of treaties the U.S. has never even ratified, like the U.N. Convention on the Rights of the Child & because many foreign countries disagree with the people of Missouri.
The trend may be continuing. Next Monday, March 28, the U.S. Supreme Court will consider the question whether foreign nationals duly convicted of the most heinous crimes are nevertheless entitled to a new trial, for reasons that those individuals didn’t even bother to mention at their first trial. As in the previous examples, the Supreme Court has actually already answered this question. In Breard v. Greene (1998), the Court made clear that criminal defendants, like all parties in litigation, may not sit on their rights & then bring up those rights later to stall the imposition of their criminal sentences. That basic principle of our legal system, the Court explained, isn’t undermined just because the accused happens to be a foreign national subject to the Vienna Convention on Consular Relations. Even this basic principle of American law may soon be reversed, however. Many legal experts predict that, in the upcoming case of Medellin v. Dretke, the Court may overturn itself yet again, for no other reason than that the International Court of Justice happens to disagree with our longstanding laws & legal principles. That case involves the state of Texas, & I’ve filed an amicus brief asking the Court to respect its own precedents as well as the authority of the people of Texas to determine its criminal laws & policies consistent with the U.S. Constitution. There is a serious risk, however, that the Court will ignore Texas law, ignore U.S. law, and ignore the U.S. Constitution, and decide in effect that the decisions of the U.S. Supreme Court can be overruled by the International Court of Justice.
There’s still other examples, other decisions, where we see Supreme Court justices citing legal opinions from foreign courts across the globe, from India, Jamaica, Zimbabwe & the list goes on. Mr. President, I’m concerned about this trend. Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be, losing control to the control of foreign courts & foreign governments. If this can happen with criminal law, it can spread to other areas of government & sovereignty. How about economic policy or foreign policy or decisions about security & military strategy?
I think most Americans would be disturbed if we gave foreign governments the power to tell us what our Constitution means. Our Founding Fathers fought the Revolutionary War precisely to stop foreign governments from telling us what our laws say. In fact, ending foreign control over American law was one the very reasons given for the Revolutionary War. The Declaration of Independence specifically complains that the American Revolution is justified because King George, & I quote, “has combined with others to subject us to a jurisdiction foreign to our constitution & unacknowledged by our laws.” After a long & bloody revolution, we earned at last the right to be free of such foreign control. It was “We the People of the United States” who then ordained & established a Constitution of the United States, & our predecessors specifically included a mechanism by which only “We the People of the United States” could change it if necessary. And of course, every federal judge & justice swears an oath to “faithfully & impartially discharge & perform all the duties incumbent upon me...under the Constitution & laws of the United States. So help me God.”
I’m concerned about this trend. I’m concerned that this trend may reflect a growing distrust amongst legal elites, not only a distrust of our constitutional democracy, but a distrust of America itself. First, it reflects distrust of our constitutional democracy.
As every high school civics student learns, the job of a judge is pretty straightforward. Judges are supposed to follow the law, not rewrite it. Judges are supposed to enforce & apply political decisions, not make them. The job of a judge is to read & obey the words contained in our laws & in our judicial precedents, not the laws & precedents of foreign governments, which have no sovereign authority over our nation.
I fear, though, that some judges simply don’t like our laws, & they don’t like the political decisions being made by the American people, through their elected representatives, about what our laws should be. So perhaps they’d rather rewrite the law from the bench. What’s especially disconcerting is that some judges today may be departing so far from American law, from American principles, & American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, & foreign cultures, because there’s nothing in this country left for them to cite for support.
Moreover, citing foreign law in order to overrule U.S. policy offends democracy, because foreign lawmaking is in no way accountable to the American people. There’s an important role for international law to play in our system here in the U.S., to be sure. But it’s a role that belongs to the American people, through the political branches of the U.S., to the Congress & the President, to decide what role international law shall play in our legal system. It’s emphatically not a role that’s given to our courts. Article I of the Constitution gives Congress, not the courts, the authority to enact laws punishing “Offenses against the Law of Nations.” And Article II of the Constitution gives the President the power to ratify treaties, subject to the advice & consent & the approval of two-thirds of the Senate. Yet our courts are overruling U.S. law by citing foreign law decisions in which the U.S. Congress has had no role, & citing treaties that the U.S. President & the U.S. Senate have refused to approve.
To those who might say there’s nothing wrong with simply trying to bring U.S. law into consistency with other nations, I say this: This isn’t a good faith effort to bring U.S. law into global harmony. I fear that it’s simply an effort to further a particular ideological agenda. The record suggests that this sudden interest in foreign law is political, not legal; it seems selective, not principled.
U.S. courts are following foreign law inconsistently, only when needed to achieve a particular outcome that a judge or justice happens to desire, but that is flatly inconsistent with U.S. law and precedent. Many countries, for example, provide no exclusionary rule to suppress evidence that’s otherwise useful & necessary to convict criminal defendants, yet our courts haven’t abandoned our constitutional rule on that topic. Very few countries provide for abortion on demand, yet our courts haven’t abandoned our nation’s constitutional jurisprudence on that subject. Four justices of the Supreme Court believe that school choice programs to benefit poor urban communities are unconstitutional if parochial schools are eligible, even though many other countries directly fund religious schools.
Even more disconcerting than this distrust of our constitutional democracy is the distrust of America itself. I’d hope that no American would ever believe that the citizens of foreign countries are always right, & that Americans are always wrong. Yet I worry that some judges may become more & more interested in impressing foreign governments, & less & less interested in simply following American law. Indeed, at least one Supreme Court justice has stated publicly that following foreign rulings, rather than U.S. rulings, & I quote, “may create that all important good impression,” & therefore, & I quote, “over time we will rely increasingly...on international & foreign courts in examining domestic issues.”
This attitude is especially disturbing today. The brave men & women of our Armed Forces are putting their lives on the line in order to champion freedom & democracy not just for the American people, but for people all around the world. America today is the world’s leading champion of freedom & democracy. Meanwhile, the U.N. is rife with corruption, & the U.N. Human Rights Commission is chaired by Libya.
Mr. President, I’m disturbed by this trend, & I hope that the American people will have a chance to speak out. I believe that the American people don’t want their courts to make political decisions; they want their courts to follow & apply the law as it’s written. The American people don’t want their courts to follow the precedents of foreign courts; they want their courts to follow U.S. law & the precedents of U.S. courts. The American people don’t want their laws controlled by foreign governments; they want their laws controlled by the American government, which serves the American people. The American people don’t want to see American law & American policy outsourced to foreign governments & foreign courts.
So today, I introduce a sense of the Senate resolution, to give this body the opportunity to state for the record that this trend in our courts is wrong, & that American law should never be reversed or rejected simply because a foreign government or foreign court may disagree with it. This resolution is nearly identical to one that’s been introduced by my colleague in the House of Representatives, Congressman Tom Feeney. I applaud his leadership & his efforts in this area, & I’d hope that both the House & the Senate will come together & follow in the footsteps of our Founding Fathers, to once again defend our right as Americans to dictate the policies of our government, informed, but never dictated, by the preferences of any foreign government or tribunal. And I ask that the text of the resolution be included at the appropriate place in the Record.
I yield the floor.
To average Americans, the points Sen. Cornyn makes would seem routine. Unfortunately, Supreme Court justices have taken to citing international laws as justification to further a political agenda. Often, they ignore the Constitution & substitute foreign treaties and/or laws. What makes it worse is that they apply these foreign rulings selectively.
If something is bad policy, the courts can rule in favor of the Constitution but include in its dissenting remarks their opinion. Judges are supposed to rule on the Constitution, not create new policies.
It's one thing, too, to have a judge make new law if it's based on the Constitution or legal precedent that's rooted in the Constitution. That's the definition of strict constructionism.
