This week's Q & A is with William Buss, professor of law at the University of Iowa.

Q: During the recently ended term of the U.S. Supreme Court, we saw an acceleration of the use of foreign decisions cited by the court as well as several cases dealing directly with international law. While the references to foreign legal practices were not binding in any of the decisions, conservatives on the Court and in Congress worry that such uses of foreign precedent weakens U.S. sovereignty. In general, at what point would citing a foreign decision in a U.S. court, especially the U.S. Supreme Court, compromise U.S. sovereignty?

A: The easiest is to say, "at no conceivable point." That is, I can't even imagine a point at which justices appointed by the president and approved by the Senate would advocate for such a position. So, we're basically talking about a myth here.

Q: In these cases, what is the difference between interpreting international law and citing the decisions of foreign courts?

A: International law is part of American law. In our constitution, we recognized that we need to be able to enter into treaties with other countries. Those laws are enforced in the same way as other U.S. laws; they are laws that we are bound by. With all of the controversial treatments of prisoners in the world, especially after Afghanistan and after Iraq, there is no suggestion that we aren't bound by the Geneva Convention. There might be some question about when it applies and what it means, but we are a nation in a world of other nations. We can hold that the convention is part of American law and not have any suggestion that it is inconsistent with American sovereignty.

A different thing would be the citing or referring to the law of the European Human Rights Court, a fairly important court in Europe. That has been done, but not frequently, by the Supreme Court as a way of saying, "This is what they do, but we aren't bound by that." It's relevant in the sense that the European court, when faced with a comparable problem, solved it in this way. That, seems to be, to be wholly appropriate.

Q: U.S. Rep. Tom Feeney, R-Fla., and Rep. Bob Goodlatte, R-Va., have sponsored a resolution - the "Reaffirmation of American Independence Resolution" - to affirm the sense of the Congress that judicial decisions should not be based on any foreign laws. Is this an overreaction to what the Court has been doing? What would prompt this reaction?

A: It's an absurd reaction. When people are giving advice that you consider beyond the pale, it's hard not to think that they are doing it purely for political reasons. It's possible that they view this practice as being truly inconsistent to the American Constitution, but it makes no sense to me that they would be taking this so seriously.

One of the congressmen, in explaining the resolution, cites the Declaration of Independence. I looked it up again and found that, after beginning, "When in the Course of human events," it goes on to reference "a decent respect to the opinions of mankind." This shows that we are people in the world. That we are an independent and sovereign people, but we still need to talk to and listen to others around us.

Q: In The Paquete Habana decision (1900), the U.S. Supreme Court declared that "International law is part of our law." How do justices draw the line between listening to foreign ideas and obeying foreign commands?

A: Again, one has to make a distinction between international law and the process of taking foreign laws into account. They are two different things, but they are both foreign in the sense that they cause us to look beyond our own parochial border. The one incredibly complicated decision this term, Sosa v. Alvarez-Machain, involved the Alien Torts Act, a law enacted by the First Congress of the U.S. The Court, in trying to figure out what the law meant today, demonstrated that Congress understood that the "Alien Torts Act" enforced the law of nations as part of our common law. Constitutional law has gotten more complicated than it was thought to be at the time of the framers, but, Congress understood at the very beginning that there was an international tie that couldn't be totally cut between American law and the law of nations.

Q: Justices O'Connor, Ginsburg and Breyer have each stressed publicly the need for the Supreme Court to consider the deliberations of other democratic constitutional courts. Justices Thomas and Scalia are steadfastly against any use for foreign law. Chief Justice Rehnquist was against it in the 2003 Lawrence v. Texas decision, but he himself cited Dutch experience in the court's rejection of the right to assisted suicide in 1997's Washington v. Glucksburg. Do the Justices' opinions match their other ideological positions? Is this just one more symptom of the recurring 5-4 decisions by the Court or is this a different type of dividing line?

A: It's both. I don't think it's just that they are pretending to be influenced in this fashion but really have different reasons for disagreeing or dissenting. But some of the Court's divisions along the 5-4 decisions are related to this. One example would be that Scalia and Thomas are the purists or the originalists on the Court. That's their theoretical position, which means that they think the Constitution means what the framers thought it meant. They're opposed to the dominant view that the Constitution is an organic body of laws.

It's easy to see that if a justice dealing with the question of what the due process clause mea ns vis-à-vis the issue of the rights of gays and lesbians, the framers couldn't have in mind what the European Human Rights Court has to say about the subject. In today's world, the European Human

Rights Court has dealt with that kind of question concerning the same sorts of factors that American courts would need to consider. Yet Scalia would consider any such material to be irrelevant because the framers didn't have any conception that there would be such an organization like the European Human Rights Court. So, it's the same as the other dividing lines, but a little different.