Cornyn Introduces Legislation to Keep Foreign Influence Out of U.S. Courts

CORNYN INTRODUCES LEGISLATION TO KEEP FOREIGN INFLUENCE OUT OF U.S. COURTS

Monday, March 21, 2005

WASHINGTON-U.S. Sen. John Cornyn (R-Texas), 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 should not be influenced by other countries. The resolution states that determinations regarding the meaning of the Constitution of the United States should not 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 United States.

"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 and foreign governments," Cornyn said. "And if this can happen with criminal law, it can also spread to other areas of our government and 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, and the procedure is upheld by the Supreme Court, those courts should not 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, and American jurors, and U.S. sovereignty should not 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, and 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 United States. In particular, the court will consider the case of a Mexican national, Jose Medellin, who was convicted of the 1993 rape and 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 and observers say, may be developing in our courts - a trend regarding the potential influence of foreign governments and foreign courts in the application and 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 and of our Constitution. If this trend continues, foreign governments may even begin to dictate what our laws and our Constitution mean, and 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 and criminal policies are informed, not only by our Constitution and by the policy preferences and legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts.

It is 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 will 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 had 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 and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and 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" and the views of the European Union.

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 should not remain illegal. In Bowers v. Hardwick (1986), the Court held that it is 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 and 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 and 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 is 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 and 17-year olds convicted of murder, no matter how brutal and depraved the act, and 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 United Nations Convention on the Rights of the Child, and 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 did not 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 and then bring up those rights later to stall the imposition of their criminal sentences. That basic principle of our legal system, the Court explained, is not 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 and legal principles. That case involves the state of Texas, and I have 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 and policies consistent with our 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 are still other examples, other decisions, where we see Supreme Court justices citing legal opinions from foreign courts all across the globe - from India, Jamaica, Zimbabwe - the list goes on and on.

Mr. President, I am 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 and foreign governments. And if this can happen with criminal law, it can also spread to other areas of our government and of sovereignty. How about economic policy? Or foreign policy? Or our decisions about security and 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, and I quote, "has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws." After a long and 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 and established a Constitution of the United States, and 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 and justice swears an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God."

I am concerned about this trend. I am 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 and apply political decisions, not make them. The job of a judge is to read and obey the words that are contained in our laws and in our judicial precedents - not the laws and precedents of foreign governments, which have no sovereign authority over our nation.

I fear, though, that some judges simply don't like our laws, and they don't like the political decisions that are being made by the American people, through their elected representatives, about what our laws should be. So perhaps they would 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, and from American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, and foreign cultures - because there is 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 is an important role for international law to play in our system here in the United States, to be sure. But it is a role that belongs to the American people, through the political branches of the United States - to the Congress and to the President, to decide what role international law shall play in our legal system. It is emphatically not a role that is 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 and consent and 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, and citing treaties that the U.S. President and the U.S. Senate have refused to approve.

To those who might say there is nothing wrong with simply trying to bring U.S. law into consistency with other nations, I say this: This is not a good faith effort to bring U.S. law into global harmony. I fear that this is simply an effort to further a particular ideological agenda. Because 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 is otherwise useful and necessary to convict criminal defendants - yet our courts have not abandoned our constitutional rule on that topic. Very few countries provide for abortion on demand - yet our courts have not 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 would hope that no American would ever believe that the citizens of foreign countries are always right, and that Americans are always wrong. Yet I worry that some judges may become more and more interested in impressing foreign governments, and less and 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, and I quote, "may create that all important good impression," and therefore, and I quote, "over time we will rely increasingly . . . on international and foreign courts in examining domestic issues."

This attitude is especially disturbing today. The brave men and women of our Armed Forces are putting their lives on the line in order to champion freedom and democracy not just for the American people, but for people all around the world. America today is the world's leading champion of freedom and democracy. Meanwhile, the United Nations is rife with corruption, and the United Nations Human Rights Commission is chaired by Libya.

Mr. President, I am disturbed by this trend, and I hope that the American people will have a chance to speak out. I believe that the American people do not want their courts to make political decisions; they want their courts to follow and apply the law as it is written. The American people do not want their courts to follow the precedents of foreign courts; they want their courts to follow U.S. law and the precedents of U.S. courts. The American people do not want their laws controlled by foreign governments; they want their laws controlled by the American government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and 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, and 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 has been introduced by my colleague in the House of Representatives, Congressman Tom Feeney. I applaud his leadership and his efforts in this area, and I hope that both the House and the Senate will come together and 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.

http://cornyn.senate.gov/record.cfm?id=234194