Remarks at the University of Chicago Law School

Article excerpt

Thank you and good afternoon. I appreciate the invitation to be with you today at this great institution.

Last week, when the President announced his nomination of Judge Sam Alito to be Associate Justice on the Supreme Court, Judge Alito said that he holds the Supreme Court "in reverence"1; it represents to him "our dedication as a free and open society to liberty and opportunity, and, as it says above the entrance to the Supreme Court, 'equal justice under law.'"2

Judge Alito's comment reminds me of a statement by President Abraham Lincoln. Lincoln said that, while Americans come from many walks of life, a "reverence for the laws"3 is our unifying heritage. He urged Americans to make reverence for the laws a "political religion,"4 a civic duty taught in every home, school, and place of worship, "proclaimed in legislative halls, and enforced in courts of justice."5

I want to discuss with you today a trend I see in our courts, led most prominently by certain members of the Supreme Court, that I fear may undermine the long tradition of reverence that Americans have for the supreme law of the land-the Constitution of the United States.

I am referring to the growing tendency by some judges to interpret the Constitution by reference to the laws and judicial decisions of foreign nations and to strike down American laws enacted through the democratic process.

Before I proceed further, let me be clear: I hold the Judiciary in the highest regard, and nothing I say today diminishes the respect and admiration I have for judges and, in particular, the Justices of the Supreme Court. Nor do I mean to disparage any other nation's laws or the important role of international law. Far from it.

Judges and lawyers routinely use international law in other contexts. For instance, judges and lawyers seeking to interpret our treaty obligations routinely consider the interpretations of our treaty partners. Sometimes our statutes direct us to consider international law, as when the Foreign Sovereign Immunities Act6 creates jurisdiction over cases involving property "taken in violation of international law,"7 and foreign law will often be relevant in the litigation of public and private contract disputes involving foreign parties. All this is as it should be, and US government attorneys and the Judiciary are on solid ground in paying attention to developments abroad in these instances.

It is also entirely appropriate for our elected representatives in the Congress or the State legislatures to consider how lawmakers in other countries have approached problems when our representatives write the laws of the United States, as I'll discuss later.

And of course, international obligations play a vital, powerful, and positive force in the conduct of our foreign policy. As Secretary of State Rice has said, and I want to underscore today:

America is a country of laws. When we observe our treaty and other international commitments . . . other countries are more willing . . . to cooperate with us and we have a better chance of persuading them to live up to their own commitments. And so when we respect our international legal obligations and support an international system based on the rule of law, we do the work of making the world a better place, but also a safer and more secure place for America.8

This is not just the view of the Secretary of State. President Bush expects other countries to observe their treaty and other international commitments to us, and has stated that in all cases our own international obligations are also to be taken seriously. At the Department of Justice, we rely on treaties every day. For example, the many extradition treaties we have in place ensure that criminals are brought to trial and justice.

The globalization of terrorism makes international cooperation between domestic and foreign law enforcement and intelligence agencies essential. I work and visit regularly with my counterparts around the world as we fight common threats that do not recognize political boundaries. …