Wednesday, November 3, 2010

Also, They Should Ban Dinosaurs And Evil Robots

Oklahoma made a preemptive blow against THE TERRORISTS yesterday with over 70% of the state voting to ban judges from using "Sharia or international law" when issuing rulings.

The proposition’s sponsor, Republican Rex Duncan, told reporters Tuesday that the proposition is a "preemptive strike" against judges who he worries could be “legislating from the bench or using international law or Sharia law.”

Opponents of the measure pointed out that the First Amendment bars Congress from make any law respecting the establishment of religion.

The proposition also faced criticism from Muslim leaders who have said they intend to challenge it in court.
Former House Speaker Newt Gingrich is one of the top voices spreading concern that Islamic law may creep into American courts, although he has not provided proof that such fears are justified.

Gingrich attracted national headlines in September at the Values Voter Summit in Washington when he declared, “I am opposed to any efforts to impose Sharia in the United States.”

“We should have a federal law that says under no circumstances in any jurisdiction in the United States will Sharia [law] be used in any court to apply to any judgment made about American law,” Gingrich said.

Besides this being a deeply cynical attack on Oklahoma Muslims, good luck getting any international company to do business in Oklahoma if international trade law no longer applies to businesses in the state.



Asariel said...

There are valid concerns about US courts citing international law in their decisions. For instance, in the US Supreme Court case Graham v Florida. The case was about whether or not it is constitutional to sentence juveniles to life without parole. In the majority decision - which found that it is unconstitutional - Justice Kennedy cited the United Nations Convention on the Rights of the Child as one of the reasons for the ruling.

As of the time of this writing, we have not ratified the United Nations Convention on the Rights of the Child. It is, therefore, not US law and has no business being cited in a US Supreme Court decision.

Hence the - in my opinion, justified - concerns driving this law. If the Supreme Court will make use of international laws that do not have the force of law in this country in this case, under what other circumstances will they do the same?

The sharia thing seems like drivel, and any ruling that cited sharia law would most likely be successfully challenged on First Amendment grounds, but it does represent a not-unreasonable slippery slope.

The ruling can be read at, and the reference begins on page 34.

StarStorm said...

I still do not understand why we aren't a signatory to that particular Convention.

Anonymous said...

Asariel, I think you're kind of missing the point of Kennedy's citation of international law.

He was not citing is as a binding authority. Rather, he used it as an indicator of where other, similar cultures are with regards to the issue. Had he cited it as a binding authority, your point would be valid.

The fact is, judges are allowed to cite anything they want, when it is simply to inform on current opinions.

Justices cite non-binding law all the time. They also cite dissents. Are you arguing that Justices should never cite any non-binding authority?

Anonymous said...

The real question is what actual intelligent discussion on the finer points of anything is doing on this grade D blog.

I will throw in that there are a number of treaties that the United States is signatory to, and that I believe the measure can be challenged on the Supremacy clause, as well as the Executive's explicitly enumerated powers of making treaties and the Senate's to ratify them.

Asariel said...

@Anonymous (the first one, to be referred to as "the intelligent one" from here on out): The Justice who wrote the majority opinion (Justice Kennedy, I believe) actually did call it out as an all-but-binding legal precedent. I refer you to page 35:

"The debate between petitioner’s and respondent’s amici over whether there is a binding jus cogens norm against this sentencing practice is likewise of no import. See Brief for Amnesty International 10–23; Brief for Sixteen Members of United States House of Representatives 4–40. The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it."

Or, in short, I'm saying that Judges should be citing US law for their decision, not the feeling "of the world's nations that a particular sentencing practice is inconsistent with basic principles of decency". Basing rulings on US law makes us subject to our laws. Basing rulings on international sentiment makes us subject to the whims and fads of other nations, many of whom have substantially different laws and rights.

Asariel said...
This comment has been removed by the author.
Zandar said...

Pretty apparent the trolls are going to have to step up their game here.

My larger concern is as Asariel said, while he has a real point about the validity of judges citing international laws regarding US citizens (corporate or otherwise) on US soil, the Sharia part was just a blatant fearmongering dog whistle to get out Oklahoma voters.

It worked, too. First of all, I don't think this is something that should be decided on as a ballot measure, it seems like a massive imposition on the judicial. Second, As Asariel painstakingly pointed out, this question has been all but dealt with by SCOTUS, which, again, would make a state law concerning it somewhat moot.

That is unless the entire point is to force another SCOTUS ruling on the matter, which may very well be the long play on this.

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