Imagine waking up one Sunday morning and reading the headline in your local newspaper: “Supreme Court rules that the press can’t question the president,” and imagine that their ruling cited international case law from nations like China or Cuba, where it is illegal to question the word of the executive branch. While this idea may seem far-fetched, it is a daunting possibility.
Foreign law poses a very real threat to the American judicial system. In recent years, Supreme Court justices have allowed foreign and international law to permeate our court systems, interjecting it into their rulings and creating an environment of disregard for national sovereignty. Our Constitution laid the foundation for our nation’s judicial system, and referencing or using foreign law in American courts will lead to its erosion. Each case that sites foreign law is another opportunity to set precedent and for the Constitution to be challenged or overrun.
That is why I have introduced legislation to protect our Constitution and federal court systems from this type of practice. My two-page bill, H.R. 973, simply states that “in any court created by or under Article III of the Constitution of the United States, no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law, except to the extent the Constitution or an Act of Congress requires the consideration of that foreign law.”
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, and the practice of referring to foreign law puts their underlying motives into question. There are three particular Supreme Court cases where judges have cited foreign and international precedent: 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, setting precedent for future rulings.
This disconcerting trend has gained traction across the country, sparking national concern. Currently there are over a dozen states that have introduced legislation banning foreign law on the state level — including the state I represent, Florida. Furthermore, the issue is of such concern that questions about it have become a fixture of the confirmation process for Supreme Court justices. In her 2010 confirmation hearing, Elena Kagan was questioned by Senator Charles E. Grassley, an Iowa Republican, who asked 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.”
This kind of practice begs the question: Are we going to allow our court systems to dictate our policymaking process based off of foreign sources or are we going to go through the proper channels prescribed by our Constitution? We must remember that we have an American judicial system in place for a reason; it is based off of our country’s rich history and it is intentionally unique to our great nation. As we move forward as a country, we must work to protect it.
Rep. Sandy Adams represents Florida’s 24th Congressional District.