Federal appeals court declares Oklahoma sharia ban unconstitutional

Daniel S. writes:

Robert Spencer at Jihad Watch has posted an article detailing the federal appeals court ruling upholding a lower federal court ruling which held an Oklahoma state constitutional amendment to be unconstitutional. The outcome is hardly surprising or unexpected, but a couple of points are worth making. First and foremost, the traditional constitutional order in America is dead, and has been for some time. When most federal judges rule something unconstitutional, what they mean is that it is non-liberal and thus unacceptable. With that in mind, our judicial elites, even in the face of legislation passed through popular vote (the vehement opposition to the ID checking law in Arizona is another case in point), make it essentially illegal for us to defend ourselves as a society. Finally, men like Spencer need to realize that the liberal concepts which they promote, and which modernity is built upon, such as tolerance and equality, are the concepts that make this court ruling possible in the first place.

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Malcolm Pollack writes:

At American Thinker, Christopher Holton argues, rather effectively I think, that the proposed statute was legally flawed, and that a better alternative is available.

He writes:

Unfortunately, SQ 755 has had the opposite of its intended effect. It has proven to be a boon to its opponents, and a distraction from the more carefully drafted bills designed to prevent both the entry of unconstitutional foreign laws such as shariah in American jurisprudence and the use of transnationalism by activist judges.

SQ 755 contains several flaws, some legal and some practical. The legal flaws have already been exposed in the federal courts, which have effectively quarantined the amendment from being implemented. Here is a summary of the flaws in SQ 755, Oklahoma’s Save Our State amendment:

• SQ 755 is not facially neutral, because it specifies shariah law.

• SQ 755 contains what appears to be a blanket ban on the use of international law or the laws of foreign nations. While this may seem like a good idea at first glance, from a practical standpoint it may interfere unnecessarily in the right to contract and could serve as an impediment to international commerce. In essence, if someone in Oklahoma, or a business or corporation in Oklahoma, wants to sign a contract with provisions of foreign or international law, they can do so. This is not an uncommon practice in business in these times, and throwing such agreements out of Oklahoma courts simply based on the fact that they contain elements of foreign law could in fact place Oklahoma corporations at a disadvantage in having to have all disputes adjudicated away from home.

• SQ 755 is too vague. It does not give the courts specific enough instructions with regard to such complex legal issues as comity and choice of forum. This could create loopholes for activist judges.

• Practically speaking, SQ 755 is defective if its aim is to prevent the enforcement of shariah laws in America. The bill bans the use of shariah in decisions without defining what shariah is. Judges in the U.S., Oklahoma being no exception, are not generally educated or informed about shariah. They cannot be expected to recognize shariah. If a question arises in a case as to whether some aspect of a conflict comprises shariah or not, a judge will be forced to consult an outside expert or source to make a determination. In almost every circumstance, that outside expert or source will end up being a shariah scholar or the work of a shariah scholar. So, ironically, the very law that is designed to prevent shariah from working its way into our legal system will have invited shariah experts in to make rulings.

Unfortunately, SQ 755 has now given ammunition to proponents of shariah and transnationalism, who point to 755 as “proof” that any law designed to prevent the incursion of foreign laws and foreign legal doctrines into state courts in the United States is unconstitutional, or will be subject to expensive legal challenges from Islamist groups, such as the Muslim Brotherhood’s Council on American Islamic Relations (CAIR) or the judicial activist/transnationalist ACLU.

LA replies:

One wonders, what were the Oklahoma lawmakers thinking? Weren’t they aware that any state laws objectionable to liberals are instantly put through the ringer of the federal courts, and that even the strongest and most carefully written laws are sometimes overturned? It sounds as though they didn’t think very much about constructing a bill that could withstand the inevitable challenge.

Carol Iannone writes:

The Constitution is not dead, Larry. The Constitution is dead when you are arrested and not given due process. The Constitution is dead when Larry Auster is taken away in the middle of the night and never heard from again. The Constitution is dead when someone comes to your apartment and says it’s too large for one person; you’ll be sharing it with another person; all property belongs to the people now. The Constitution is dead when you have to be aware where you work that some of your colleagues, clients, or visitors are there to spy on you, overhear what you say, and have you questioned or arrested if you say anything out of order. The Constitution is dead when you can’t be hired anywhere because of something you’ve written or spoken. The Constitution is dead when you have to be careful about talking to foreigners because this can be seen as suspicious. The Constitution is dead when one of the only ways you can travel out of the country is to undergo surgery that classifies you as disabled (the government doesn’t have to pay your disability while you’re abroad so they don’t care as much).

Things may look bad sometimes, but there’s no value in making them worse than they are. It is still a great country and it is still worth the fight.

LA replies:

My answer to Carol is that there is a lot of death in a constitution. Of course, the Constitution is not dead in all respects, but in key respects it is dead. Only about six people in the country seem to know or care any more, but, as I have discussed endlessly, through the revolutionary judicial transformation of the 14th Amendment, especially via the Incorporation Doctrine, the Constitutional relationship between the federal government and the state governments has been turned on its head. Instead of the federal Congress being restrained in what it can do to the states, the federal judiciary has virtually unlimited power over the states.

People who eagerly and with patriotic heartstrings appeal to what is still good or ok in our society, as to avoid looking at what is very, very bad, are not being serious about the situation in which we find ourselves.

Posted by Lawrence Auster at January 12, 2012 07:20 AM | Send