Page 3 of 4 -- The judges who cite foreign law, however, routinely deny that the opinions of foreign courts are the basis of their decisions. In the juvenile death penalty case, for example, Kennedy wrote that widespread world opinion against executing juveniles merely provided ''affirmation'' to the majority conclusion that such executions amount to ''cruel and unusual punishment.''
In January, Scalia and Breyer faced off in an unusual public debate on the issue at American University's Washington College of Law. ''We don't have the same moral and legal framework as the rest of the world, and never have,'' Scalia said. ''If you told the framers of the Constitution that what we're after is to, you know, do something that will be just like Europe, they would have been appalled.''
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The debate, perhaps not surprisingly, has moved from the Court to Congress. After the Court referred to a ruling by the European Court of Human Rights in its 2003 decision striking down the Texas sodomy law, Republicans in Congress swung into action. In March 2004, Feeney and Representative Bob Goodlatte, Republican of Virginia, introduced the Reaffirmation of American Independence Resolution, which states that judges cannot rely on ''foreign judgments, laws, or pronouncements'' unless they ''inform an understanding of the original meaning of the Constitution of the United States.'' (A companion resolution is expected to be introduced in the Senate by John Cornyn, Republican of Texas, this week.)
Seeking how best to rein in the Court's cosmopolitanism, Feeney and his colleagues went as far as to consider pushing for the impeachment of judges who referenced foreign law, he said, but settled on a resolution. ''While you may not have the power to fix a problem in another branch, you can certainly send a strong message,'' Feeney explained.
Feeney says he expects the resolution to come to a vote during this Congress, especially in the wake of the juvenile death penalty decision, in which Justice Kennedy not only discussed foreign law at length but referred to a United Nations convention on the rights of children that the United States has pointedly refused to ratify.
''I don't know if they could have done a better job of ripping up and shredding the Constitution,'' said Feeney. In the ruling, he argued, the Court had essentially entered into and ratified a treaty that had been rejected by the president and the Senate, to whom the Constitution reserves treaty powers.
But in testimony to the House subcommittee studying Feeney's amendment last year, Georgetown's Vicki Jackson said that in the recent cases, ''foreign law is not being used in any way as binding precedent, but as relevant information'' about how other courts view similar issues. For example, in the sodomy case Kennedy used the European decision in part to counter a suggestion in the 1986 decision Bowers v. Hardwick that sodomy had been condemned throughout Western civilization. Continued...