Friday, January 14, 2011
Profs. Martha Davis (Northeastern) and Johanna Kalb (Loyola New Orleans) recently released an American Constitution Society Issue Brief, Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives. We most recently posted on Oklahoma's vote to amend its constitution to ban the use of Sharia law in its courts here.
Davis and Kalb put Oklahoma's ballot initiative in a larger context of federal and state initiatives to ban the use of international or foreign law in U.S. courts and explore the legal and policy issues raised by these initiatives. Thus they argue that state anti-international law initiatives undermine federalism, interfere with federal protections for American citizens and businesses, and interfere with judicial independence.
From the Brief:
What the proponents of the amendment fail to acknowledge, however, is that it is impossible to bar judicial "consideration" of any source--particularly when, as described above, international law is relevant to the dispute. If anything, the amendment forces judges and justices to be less transparent in their reasoning or (if they try to abide by the strict letter of the provision) to reach incorrect decisions. And as unlikely as these provisions are to promote their intended goal, the consequences of these sorts of measures for Oklahoma and for the nation are severe. The federal government's capacity to protect American citizens and businesses on the international stage is directly related to its ability to guarantee our nation's reciprocal compliance. Oklahoma's action threatens our national commitment to honoring our international obligations and undermines the states' ability to work cooperatively with the federal government to implement them.
The Brief is good reminder that there are important legal and policy issues in these initiatives--beyond the First Amendment issues that most often catch our attention.