BY WALTER JENNY JR.
State Question 755 is ridiculous. It’s also dangerous.
Why is it up for consideration? When the Republican-controlled legislature approved it for the ballot, the author, State Rep. Rex Duncan of Sand Springs, said in a press release, “Judges in other states and on the federal bench have increasingly turned to citing international law in their court decisions, something I and others feel is grossly inappropriate in a sovereign state such as our own.”
They may feel it’s “grossly inappropriate,” but any first-year law student knows the job of the courts is to interpret the laws under which parties operate. This radical proposition is astonishing and unprecedented in American jurisprudence.
If approved, Oklahoma’s Constitution would require the courts to “uphold and adhere to” the federal and state constitutions, statutes, rules, regulations and common law in making judicial decisions. Sounds good. And, of course, they do that already. But they also rely on the precedent of published opinions, which may end because case law is omitted as an approved source of legal authority.
“The courts shall not look to the legal precepts of other nations or cultures,” according to the proposed language, even though our entire legal code is built upon our British legal heritage. “Specifically, the courts shall not consider international law or Sharia Law.”
There is no single code that contains “international law.” It’s a legal term that refers to the laws and treaties that govern relations between independent nations. It’s not clear from the ambiguous language whether the courts are to ignore the laws of other countries, as opposed to treaties between countries, or what he means by “legal precepts.” But there are differences in legal parlance.
The proposal is also on doubtful constitutional grounds. The Supremacy Clause makes the federal Constitution, laws and treaties the “supreme law of the land, and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” As Chief Justice John Marshall wrote in an 1824 opinion, “In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.”
This gambit sounds a lot like the Bricker amendments from the 1950s. Ohio Sen. John Bricker proposed language that would have expressly prohibited the ratification of any treaty that conflicted with the Constitution. As one conservative Senator argued, “I do not want the President of the U.S. to make a treaty with India which would preclude me from butchering a cow in my own pasture.” President Eisenhower fought his own party over the issue and, with the support of Senate Minority Leader Lyndon Johnson, won the defeat of the proposal by one vote in 1954. A subsequent 1957 Supreme Court opinion held that constitutional rights prevail over treaties, and the moot idea disappeared into the history books.
The proposal could also hurt Oklahoma business interests. Oklahoma’s Department of Commerce reports that about 14,000 foreign companies do business in Oklahoma, employing more than 35,000 people. We have two foreign trade zones and ocean-going ports on the Arkansas River. Oklahoma exports exceed $4 billion a year.
In a lawsuit between an Oklahoman and a foreign company, this constitutional amendment might prohibit an Oklahoma judge from “look[ing] to the legal precepts of” a foreign country in order to dispense justice, even if doing so would favor the Oklahoman. It could prevent an Oklahoma judge from considering treaties under which international trade is conducted, or the culture of a signatory to a contract. In effect, Oklahoma could become the only state in the nation incapable of enforcing international business law.
To stir emotions, this proposal throws in a ban on Sharia law, which in many respects parallels Old Testament law. Among the right-wing conspiracy theories circulating on the Internet is that President Obama is Muslim, and that he intends to impose Islamic law in the United States. First of all, of course, neither President Obama nor anyone else has proposed any such thing. The First Amendment guarantees freedom of religion, and the doctrine of separation of church and state prevents a religious code from being made law. And, after all, our laws are written by elected officials like Rep. Duncan and his peers who would stand as vanguards against such a travesty.
At best, State Question 755 is a silly attempt to pander to right-wing xenophobes that would cause chaos in the courts. It demonstrates the poor grasp of basic legal concepts by the legislature, while placing at risk Oklahoma’s international business activity. State Question 755 deserves a prompt “No” vote on Nov. 2.
– Walter Jenny Jr. lives in Edmond, OK and is a regular contributor to The Oklahoma Observer