Although Oklahoma’s law is the first to come under court scrutiny, legislators in at least seven states, including Arizona, Florida, Louisiana, Oklahoma, South Carolina, Tennessee and Utah, have proposed similar laws, the National Conference of State Legislatures says. Tennessee and Louisiana have enacted versions of the law banning use of foreign law under certain circumstances.
Newt Gingrich, former speaker of the U.S. House, is pushing for a federal law that “clearly and unequivocally states that we’re not going to tolerate any imported law.”
Well, we imported a fair amount of law from England. This kind of thing is just pure political junk food for ignorant or opportunistic pols. There’s no political penalty in this country at this time for promoting this kind of thing, so it’s an easy vote-getter. That Gingrich is a person with more than his fair share of natural intelligence makes it all the more abhorrent that he would be gaming this. The Oklahoma effort fell right into the cutter of the federal courts. No reason to believe that one would get wildly different results in other states once they come under federal scrutiny. Michael Gerson, a reputable conservative, did a very good job in his column a couple or weeks ago shredding up this kind of nonsense. There are so many real problems that good leaders need to tend to.
NoVA Scout, as a lawyer I have to respectfully and strongly disagree as to the concept of foreign law being given any deference as a basis of decision for our courts.
There is no legitimate justification for importing foreign law as a basis for legal decision in this country. It is totally contrary to our system of democracy and rule of law. (The English common law to which you cite is different, because our legal framework was originally based on that law, just as the English language is our comon language, and it is not considered “foreign” because of that.)
Foreign laws obviously are not a product of our democratic system and do not represent the will of the people. They should have no place in our jurisprudence. If the concept of the law is good, then the American people can enact their own version through the legislative process, and at that point it can be recognized and applied by our court system. But to give foreign laws some sort of authority in our courts is extremely dangerous. The result would be we could be bound by laws of other countries in which we had no input and which could be totally contrary to our principles.
This started primarily because about 10 years ago the U.S. Supreme Court started citing to foreign laws and court decisions to support its decisions, something that shocked a lot of lawyers at the time. (For example, the Court cited to foreign decisions in Europe to support finding unconstitutional criminal statutes in the U.S. prohibiting sodomy.) Justice Ginsburg, a champion of use of foreign law, in particular sees the use of foreign law as being an effective way to reach judicial decisions that would not otherwise be supportable.
The practice is now spreading. Among other things, it is an easy way for courts to practice judicial activism. If they can’t find anything to support their position in American jurisprudence, they can still say: “we look to the law of Finland to support our conclusion that reindeer should have a fundamental right to marry.” This is a facetious example, but you can see where it leads. For example, should the U.S. Supreme Court be able to point to the laws of Canada or Great Britain to conclude that the First Amendment guaranty of free speech in our country is really not absolute because free speech is not absolute in those countries?
The problem with the Oklahoma statute is that it singles out sharia law. If it simply said “laws other than those validly enacted and applicable to this jurisdiction shall be given no deference or application by the courts,” that would be fine and in fact for most of our history would have been a “no-brainer”–until recently judges realized foreign laws were irrelevant and inapplicable and they wouldn’t have needed a statute to come to that conclusion. However, the quality of legal education and jurisprudence in this country (and recognition of the people of their rights) has declined to the point where these concepts can be packaged and sold to an unsuspecting citizenship.
2….
To the point and well said.
Jim the Puritan is right. There is no place in our country for Sharia law because it is not a product of our democracy and, hence, does not represent the will of the people. If we like the concept of a foreign law, we can pass a law of our own that incorporates the concept. Judicial activism is never justified, and is especially repugnant in regard to the use of foreign laws…tne end *never* justifies the means. Ben Franklin was right, too: we have a Republic, if we can keep it.
No. 2: My comment was directed at the subject of the Post, the anti-Sharia law movement that has gotten to be such catnip for a certain type of politician these days. I take it you agree with my objections to the Oklahoma measure, one that even laymen with vague familiarity with the Constitution can readily perceive to be unacceptable in this country. Most of the political hacks that support this kind of thing know it that it is both unnecessary and unlawful.
Your issue is a more substantive one and I don’t disagree in principle with your observations concerning foreign law. However, I think you overstate the use to which reference to foreign law has been put, at least at the level of the Supreme Court of the United States. I have not researched it closely, but am generally aware of the ebb and flow of the case law coming out of that court. I do not believe that reference to foreign law has had dispositional significance (assuming that we are not talking about international treaties or conventions to which the United States is a party – these, of course, have comparable status to domestic law under the Constitution). It is, however, true that Justices Kennedy and Ginsburg (perhaps others) have excited controversy by discussing foreign legal norms and approaches in decisions. My vague recollection (unencumbered by recent study or review) is that these instances are very rare (I recall the juvenile death penalty decision as being one) and that one could strip out the foreign law discussion and still find the ultimate decision supportable without the reference.
I think it axiomatic that judges cannot decide cases other than under laws “applicable to this jurisdiction.” Your proposed language is in effect, at least implicitly, throughout the nation. If I were a legislator and it came up for a vote, I certainly could not oppose such a measure, although I might ask why it is needed.
Oklahoma has not experienced a spate of Sharia-based jurisprudence. Nor has any other venue in this country. This is simply a non-issue being fanned for votes. Your larger point is substantively sound, but, again, I suspect that, other than obiter dicta, there is little or no jurisprudence being created in this country that swings on foreign law for its outcome.
RE: “This is simply a non-issue being fanned for votes. . . . ”
Yeh — that’s what some people said about the need for a constitutional amendment defining marriage.
I’m for Jim the Puritan’s wording above: “laws other than those validly enacted and applicable to this jurisdiction shall be given no deference or application by the courts,â€. It’s perfectly reasonable and of course is not a “non-issue” as any barely informed citizen can observe by reading the newspapers. Libs, of course, will use the Oklahoma effort’s ham-handedness to obscure the actual issue for conservative voters who are rightly suspicious of libs and their intentions regarding “international law” [heh]. Thanks, Jim the Puritan, for not allowing the conversation to veer too sharply from the actual issue, which of course some will for one reason or another attempt to deny is one.
Sarah, as a conservative, I don’t favor the federal government becoming the repository of marriage law. That is clearly a state function subject to federal influence only to the extent that state law may violate fundamental rights guaranteed by the Constitution. But I should not allow you to divert us (or at least me) from the topic here – Sharia law in the United States and, as amplified by Jim, foreign law being used as a decisional basis in domestic jurisprudence.
I suppose the way to assess the larger (i.e., beyond Sharia) issue is to have some of our readers identify cases in the US that have been decided on the basis of Sharia or foreign law. Again, my sense is that there are few, if any, and, as sound and non-controversial as are the principles advanced by Jim and New Pilgrim in their comments, the need for alarm is not there. However, as indicated above, I welcome correction and information. If it is apparent that this is a substantial issue, then perhaps the kind of general language Jim proposes is more necessary than I had realized, although I think the sentiment he expresses is observed and well understood by virtually every jurist in the country.
A minor caution, however: It frequently happens that parties contractually agree on a choice of law in a particular jurisdiction. I presume that none of us is suggesting that judges disregard such a consensual choice among contracting parties. The breadth of Jim’s language might reach that kind of situation, although I do not take that to be his intent.
7, I agree with Sarah. Because of inaction the federal government is in the process of defining marriage. I would like to leave it to State law, but that is no longer possible. Sharia law is incompatible with US law and should not even be allowed by contract because it is contrary to public policy. By way of example the enforcement of anti-black clauses in contracts is prohibited even though they were legal when drafted.
NoVA Scout–One I can think of is the sodomy decision where e decision pointed to European decisions to support holding the Texas law unconstitutional (a terrible and unsupportable decision in my opinion, the result being eventually that the States will not be able to enforce any laws regarding sexual conduct or behavior; we are already seeing that and I predict, for example, that both same-sex marriage and polygamy will be declared fundamental rights within the next 10-15 years as a result).
Another would be the decisions invalidating levels of punishment for juveniles–life imprisonment was one I remember, and I think there may have been one on the death penalty as well. Again, I believe the decision was supported by the assertion that other “civilized” countries (e.g., European countries) do not permit it.
But let me use these two examples to illustrate my point. The majority already had a result they wanted to reach, that is, to invalidate the law. However, they felt they could not justify it simply by use of American precedent. So they make what I would consider a culturally-biased decision and say that in deciding this we will refer to more enlightened European countries to support our decision, since they are more advanced jurisprudentially than we are. Justice Ginsburg has pretty much said that literally in some of her speeches. But this is simply an excuse to let the majority get away legislate their personal value preferences, and especially if they declare that is what the Constitution requires, there is absolutely nothing anyone can do about it thereafter. (The abortion decision in Roe v. Wade being a specific example of a legislative decision made judicially and then insulated from any further public debate by being declared a “fundamental right” under the Constitution.)
Why is this bad? Let’s just assume the “Evil Right Wing Republicans” somehow were now able to pack the Court full of their Evil Right-Wing types. How would people react if, for example, this new Court issued a decision that did a 180 degree turn and said life imprisonment for sodomy is perfectly fine and not cruel and unusual because, for example, in Muslim countries they are executed so we are actually being merciful and humane?
Or what if in a capital punishment case about cruel and unusual punishment they would say that lethal injection is perfectly fine because other countries like Japan and Korea have capital punishment and execute people by hanging, and other countries execute people by cutting their heads off or stoning them?
That sort of analysis is just as irrational and invalid as what is going on now. The fact again is that in doing this the judges are in fact acting non-judicially and instead legislatively, enacting their own value preferences by finding the foreign laws that support the preference.
Now Ginbsburg, in particular, is very dishonest in the whole debate, claiming that our courts have always looked to foreign law. But the examples she points to are areas where, yes, it has always been understood that there is an international law application. For example, the law merchant and trade between nations. If I’m sending goods abroad to be sold in Asia, or if I am relying on a letter of credit issued by a foreign lender, yes, I do want a uniform international understanding of what law is applicable. But that is a far different matter than using foreign law to interpret our Constitution and Bill of Rights.
And the fact is that once the U.S. Supreme Court says it’s so, there’s pretty much nothing you can ever do about it, it has become the fundamental law of the land, as decided perhaps by five judges, without the people ever having had any say in the matter.
9, The unpalatable fact is the the Supreme Court amends the Constitution under the guise of “interpretation.” In order to undue such a ruling a real Constitutional Amendment (almost impossible to achieve) is required. Thus a one way ratchet is created in favor of the Supreme Court. I would favor a Constitutional Amendment that would create a check on this power, such as a requirement that Supreme Court decisions that interpret the Constitution be subject to ratification by 2/3rds of the States.
Well, I must say, Jim, you have opened my eyes this time. Mind you ,I had suspected this (in the case of sodomy) but it was nothing more than a hunch. My distrust for justice Ginsburg, however, has always been very great; she is the paradigmatic liberal. Larry
Jim – you’re right that the Lawrence v. Texas decision did allude to foreign law treatment of homosexual acts. I haven’t looked at it in some time (I may dig it up over the weekend), but my recollection is that the references to foreign regimes was actually in response to an earlier 1980s case in which the Court had upheld a Georgia anti-sodomy statute. In that case, the majority referred to attitudes of “western civilization” toward homosexuality as a rationale for upholding the Georgia prohibitions. So the recounting of how other nations in the western tradition treat homosexual acts as a legal matter was, in some ways, responsive to the earlier invocation of “western” norms by a previous court majority.
As mentioned above, I was aware of the juvenile death penalty case. I think when one deals with the “cruel and unusual punishment” prohibition of the Constitution, reference to foreign practices (in this case it was to note that the US was one of only three nations in the world that did not prohibit the death penalty for minors) is a rational way to test what might be considered “cruel and unusual.” This is not a decisional invocation of foreign law as controlling, but rather, in context, a way of testing what humanity regards as cruel and unusual. Certainly “Cruel and unusual” at the time of the writing of the Bill of Rights might have a different content, whether in America or Europe, than it would today.
Thus far, I am standing by my thesis earlier expressed that these two examples are not examples of foreign law being imported in a decisional context to control disposition of cases in a way that would not have resulted had the foreign reference not been made. The result in both cases would have been the same. The allusions to foreign law, or practice, is a buttressing argument, but not controlling. So I will, at least until more information pours in, stand with my position that this is not a real problem in modern American jurisprudence.
Br. Michael, why would the unit for affirming the constitutional validity of a US Supreme Court decision be the individual states. The Supreme Court’s authority to determine constitutionality does not derive from and is not a delegated power from the individual states. If there were to be a ratifying level of review of the decisions of the Supreme Court (a process that I would not be thrilled with for a lot of reasons, some administrative, some substantive), why would it not be the People?
12, it was created by Justice Marshall out of whole cloth. Show me where this power is set out in Article III? In addition the Court is part of the Federal Government and was in fact created by the delegated power of the States the same as the rest of the Federal Governhment. If the Court is going to amend the Constitution by interpretation then its decisions should be treated the same as any Congressional amendment and subjected to ratification by the States. A 2/3 rds vote. Why by the States? To restore the separation of powers between the States and Federal Government ie Federalism. This is also why the 17 th Amendment should be repealed.
As a strong federalist myself, I’m more of the Daniel Webster school on this, Br. Michael. You seem to be channeling Senator Calhoun. The federal government was created by the People, not by the individual states. The People divided powers between the national government under the Constitution and the states. Those that went to the federal government are limited and, in most cases, clearly defined. But, where they are stated, they are plenary and complete and need not beg from the States for their existence. As for review of Supreme Court decisions, they do not purport to “amend” the Constitution, they state what the Constitution requires.
14, strongly disagree. The Supreme Court is acting like a sitting constitutional convention. I know what the Supreme Court says, but that is not what it does. It freely amends the Constitution, but they call it interpretation. Combine that with a “living Constitution” jurisprudence then the Constitution is nothing more than a blank canvas on which the Supreme Court writes to impose its own policy decisions. The Constitution as currently “interpreted” is nothing like it was interpreted when written, setting aside the actual express and legitimate amendments. Just look at the ever expanding “commerce clause”. I also strongly disagree that we have a limited government. I know we are supposed to, but not in reality.
As a lawyer, I no longer buy the nonsense that the Court only “interprets” the Constitution to bring out what is already there. In actuality the Supreme Courts amends the Constitution and does so without an effective check.
If the Court were to “amend” the Constitution, I would accept your point that such an amendment should be subject to the same or similar procedure as other amendments. I guess the problem is that there would seldom be consensus on when such an “amendment” has occurred. What you might consider an amendment, I would consider a common sense restatement of the meaning of the document, or vice-versa.
16, Just look at a 5 to 4 decision. Just where does the swing vote get this “pure” constitutional interpretation rather than changing the meaning of the Constitution (an amendment by any standard)? What does he or she see or have imputed that the 4 justices on the loosing end don’t get? How come the Court struck down most of the New Deal until FDR attempted to pack the Court and frightened/intimidated Justice Jackson into changing his votes?
Let’s at least recognize what it going on. You might want to read, The Constitution for Dummies, by Michael Arnheim. He has an entire chapter devoted to amending v. interpreting.
The Supreme Court has itself stated that “We’re not final because we are infallible, we are infallible because we are final.”
In my proposal all decisions interpreting the Constitution by a Federal court would go to the states for ratification once that decision became final and binding through exhaustion of appeals or resolution by the Supreme court. This solves your objection.
No, it doesn’t. The difference between me and you is that it is not apparent to me that the States have a role as Constitutional tribunals interpreting the federal constitution. I don’t know where such an authority comes from or why there would be a particular competence at the state level to make those decisions. Nor do I cede the point that a 5-4 decision inherently works an amendment to the Constitution. It seems to me that a 5-4 decision is as likely or unlikely to be a “correct”, non-amendatory resolution of a constitutional question as a 6-3 decision.
By the way, I don’t think the Court is the source of your quote. I believe this was an individual Justice (Jackson?) speaking a bit whimsically in a separate opinion.
I ‘m afraid that if I read “the Constitution for Dummies” as you suggest, my clients would run in the other direction should I negligently leave it out on my desk.