In recent years, Supreme Court justices have interjected international law into their rulings, creating an environment of disregard for national sovereignty and threatening the institutions put in place by our forefathers. The Constitution laid the foundation for our nation’s judicial system, and allowing foreign law to supersede it in any capacity leads to its erosion. Not only is using international precedent a transparent disregard for the Constitution, but it could be used to advance a judge’s personal political agenda over the best interests of the nation.
Judges have a responsibility to interpret the laws of the land - not legislate from the bench. The practice of U.S. courts referencing and deferring to foreign law needs to stop. That is why I have introduced legislation to protect the integrity of ourConstitution and U.S. laws by clarifying that our courts should follow and uphold our laws - not defer to those of foreign nations.
In particular, three Supreme Court cases cite foreign and international precedent to justify its rulings: Lawrence v. Texas, where the court overturned state anti-sodomy statutes; Atkins v. Virginia, where the court held against the execution of mentally retarded capital defendants; and Roper v. Simmons, where the court outlawed application of the death penalty to offenders who were under 18 when their crimes were committed. International and foreign laws were cited in all three cases by our Supreme Court justices in reaching their decisions.
In Lawrence v. Texas, Justice Anthony M. Kennedy cited decisions made by the European Court of Human Rights in concluding that prohibiting homosexual sodomy is at odds with current norms of Western civilization. Similarly, in Atkins v. Virginia, Justice John Paul Stevens referred to an amicus brief filed by the European Union. In the Roper v. Simmons decision, Justice Kennedy stated that “it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.” In each case, the issue is not the wisdom of the policy itself. The issue is whether that policy was developed through the American policymaking process prescribed by our Constitution or imported by the courts from foreign sources reflecting the policy preferences of the justices who happened to be sitting at the time.
This “transnationalism” has gained traction in recent years, not only in our federal and state court systems, but among members of our colleges and universities as well. State Department counsel Harold Koh, who coined the term, recently stated that “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.” In recognition of this disconcerting trend, Sen. Charles E. Grassley, Iowa Republican, questioned Elena Kagan regarding her views on international law during her 2010 confirmation hearing. He asked the Supreme Court nominee if she thought international law should factor into a federal court’s decision-making process. She confirmed that she did, stating: “I think it depends. There are some cases in which the citation of foreign law, or international law, might be appropriate.”
While my legislation is targeted specifically at federal courts, it is clear there is a strong consensus at the state level as well to outlaw the use of foreign laws when deciding matters of law. In fact, there are currently more than a dozen states where legislators have introduced bills aimed at outlawing the use of international law in our American court systems. The imposition of foreign precedent into our federal court system is a real threat to our Constitution and could fundamentally break down the very system put in place by our forefathers more than 200 years ago. Each case that cites foreign law is another opportunity to set precedent and for the Constitution to be challenged and overrun.
We have an American judicial system for a reason - one that is based on of our history as a nation - and a Constitution that is intentionally unique to the United States. As we move forward as a country, we must make a choice: Are we going to allow foreign law to supersede our Constitution, or are we going to stand behind the founding principles that have held our nation together for over 200 years? I choose the latter.
Rep. Sandy Adams is a Republican member of the House representing Florida.