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One of the profound lessons of Sept. 11, 2001, is that isolationism is dangerous-not only because it exacerbates potential threats from outside our borders, but because it excludes sources of ideas and support from other nations that can bolster U.S. efforts internationally and domestically. Unfortunately, this lesson seems to have been lost on many in Congress. Instead, efforts are under way to impose House Resolution 568, a “gag order” on the federal courts, which discourages judges from looking at foreign or international precedents. After a favorable vote by the Constitution Subcommittee, the resolution, which has 74 co-sponsors, is now pending before the full House Judiciary Committee. If it goes forward, the resolution could have an immediate impact on the U.S. Supreme Court, which will hear arguments on Oct. 13 in Roper v. Simmons, a constitutional challenge to the juvenile death penalty. The Missouri Supreme Court decision in Roper relied in part on international human rights law to support striking down the law that permitted juvenile executions. The U.S. Supreme Court has begun to embrace international dialogue on a range of issues. For many years, individual justices have noted the importance of learning from other nations. In particular, Justice Sandra Day O’Connor has urged U.S. judges to draw on decisions of the European Court of Justice, while justices Ruth Bader Ginsburg and Stephen Breyer have championed the relevance of international legal materials. Chief Justice William Rehnquist and Justice Anthony Kennedy have also noted in speeches and writings the importance of looking to international and comparative law for inspiration. In 2003, these individual voices came together in several constitutional decisions, including Lawrence v. Texas and Grutter v. University of Michigan. In Lawrence, the majority cited both the laws of other nations and international human rights law as bases for comparison with U.S. precedents. In Grutter, Ginsburg’s concurrence made specific reference to international practices of affirmative action. An international dialogue With these references, the court entered into a dialogue of ideas with its counterparts around the world. The Supreme Court of Canada, the supreme courts of India, Israel and South Africa, the European Court of Justice and many other high courts have strong traditions of looking to U.S. precedents as they shape their own domestic law. Now U.S. courts have started to respond. But rather than the wholesale adoption of other nations’ approaches to, for example, gay rights, the U.S. Supreme Court drew on our own domestic legal precedents while acknowledging the parallel processes and various outcomes in other nations with similar legal traditions and standards. This fruitful approach ensures that Supreme Court decisions canvas the best ideas and approaches available, while also engaging the judicial branch in the sort of international human rights dialogue that-if conducted universally and responsibly-might ultimately help prevent the conditions that give rise to terrorist acts. House Resolution 568 raises a number of serious issues, not the least of which is Congress’ overreaching attempt to influence judicial decision-making. A gag order that discourages the judicial branch from looking at international practices, and citing those practices where relevant, strikes at the heart of an independent judiciary. The resolution also represents a dangerous extension of the executive branch’s isolationist foreign policy to international ideas themselves. Courts and judges, after all, trade in ideas. The resolution attempts to bar consideration of a whole range of ideas simply because of their source in foreign or international law. Ironically, it is the resolution itself that is fundamentally at odds with the American values of free expression and reasoned debate. While the House resolution has no binding effect on the judiciary, its potential to chill the judiciary is clear. Judicial nominees can expect that this issue will become the next confirmation hot button, and they may feel pressured to succumb to an isolationist ideology. Judges with life tenure may feel constrained by fears of censure or even impeachment. The human rights dialogue initiated by the federal courts is a healthy exchange of ideas that can lead to better judicial decisions here and, in the end, a deeper understanding of human rights worldwide. Faced with the ongoing terrorist threat, Congress surely has better things to do than inject isolationist politics into the federal judiciary. Martha F. Davis is an associate professor at Northeastern University School of Law. She is the recipient of a 2003-2004 Soros Reproductive Health and Rights Fellowship.

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