November 4, 2010
Oklahoma Bans Reference to International Law in Court Decisions
Voters in Oklahoma approved a ballet measure to amend the Oklahoma Constitution this week, State Question 755, that provides that Oklahoma courts "shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law." The "Save Our State Amendment" raises serious questions under the U.S. Constitution. As most readers of this blog are probably well aware, treaties are part of the supreme law of the land under Article VI of the U.S. Constitution and will trump any inconsistent state laws. In addition, the U.S. Supreme Court has long applied customary international law as part of the supreme law of the land as well. See, e.g., Paquete Habana. In submitting this legislative referendum to the voters, the Governor of Oklahoma stated in his Executive Proclamation that international law as used in the proposed amendment includes both the law of nations and international agreements or treaties. By prohibiting Oklahoma judges from applying U.S. treaty law, this amendment to the Oklahoma Constitution is likely a direct conflict with the oath those judges must take to uphold the U.S. Constitution, which declares treaties to be part of the supreme law of the land.
November 4, 2010 | Permalink
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A clear violation of the express and unavoidable mandate of Article VI, clause 2 of the United States Constitution. See also http://ssrn.com/abstract=1485703
regardng Founder/Framer expectations and early decisions concerning the primacy of customary international law.
Posted by: Jordan Paust | Nov 10, 2010 10:31:12 AM