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Hearing of the House Subcommittee on the Constitution of the House Judiciary Committee - Judicial Reliance on Foreign Law


Location: Washington, DC

Chairman Smith: The accelerating trend of American judges to cite and rely on foreign law threatens our dedication to government of the people, by the people and for the American people.

Two-hundred and thirty-five years ago, America declared its independence from Great Britain. America was founded on the self-evident truth that governments derive "their just powers from the consent of the governed."

British rule denied Americans the right to make their own laws, which was one of the main reasons for the revolution. One of the Declaration's specific indictments was that King George II had subjected the colonists to "a jurisdiction foreign to our constitution, and unacknowledged by our laws."

Article VI of the Constitution provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land."

Our Republic was founded on the principle that the law that governs America should be made by Americans. And throughout our history, we have protected this heritage of self government.

Unfortunately, in recent decades some courts have increasingly relied on foreign sources of law to interpret the meaning of the American Constitution.

Reliance on foreign law exacerbates judicial activism and empowers judges to impose their own policy preferences from the bench. Judges who rely on foreign law can pick and choose the sources of foreign law that reinforce their own personal or political biases.

Foreign law tells us nothing about the original meaning of the American constitution and laws. For example, decisions by courts in Strasbourg interpreting the European Convention on Human Rights, courts in Tehran interpreting Sharia law or courts in Beijing applying Chinese law should have no effect on how American courts interpret the Constitution.

Citing foreign law undermines democracy and self-government. The American people have no control over foreign law. If we are to continue to govern ourselves, then foreign law should have no control over us.

As Justice Scalia has stated, reliance on foreign law to strike down American laws renders "the views of our own citizens essentially irrelevant."

Our system of government is based on the idea that Americans should make their own laws through the Democratic process. This has made us the strongest, most prosperous nation in the world.

Our courts should affirm this American democratic tradition, not abandon it in favor of the views of the so-called "international community." This is especially true when many in the "international community" do not share the same commitment to freedom, justice and equality that are enshrined in the American Constitution.

If we dilute these constitutional guarantees with foreign legal concepts, we weaken our Republic.

I appreciate the Constitution Subcommittee holding this hearing today. I thank Congresswoman Sandy Adams of Florida for requesting this hearing and look forward to working with her, Subcommittee Chairman Franks and the other members of this Committee who have led the effort to protect the American legal system from the undue influence of foreign law.

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