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Thoughts on the Unconstitutionality of Shari'a Law in the U. S. from a Recovering Lawyer
Under the Article IV of the US Constitution, the Federal Government must guarantee to each state a republican form of government. A fortiori the States must ensure that they have a republican form of government.
This Constitutional provision (and the parameters of a "republican form of government") has seldom been construed by the courts, but the Supreme Court has held that this is a political question and consequently it is up to the Congress and not the Courts to determine whether a State's form of government in fact renders it a republic or not.
Islamic Shari'a law is of course an all-encompassing theocratic system predicated upon Muslim supremacy over all mankind. This necessitates religious discrimination and also mandates severe legal disabilities for those who are not Muslims. It is therefore far more oppressive than a constitutional monarchy or any other system the Founders might reasonably have contemplated when drafting the Constitution of the United States.
In my opinion, incorporating any portion of Shari'a law renders a government, ipso facto, not a republican form of government and therefore to that extent illegitimate in the American system, as the Federal government is obligated to prevent such an outcome.
In The Federalist Papers No. 43, future President James Madison wrote in support of the guarantee clause:
...who can say what experiments [in State governments] may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?... Whenever the States may choose to substitute other republican forms, they have a right to do so, and to claim the federal guaranty for the latter. The only restriction imposed on them is, that they shall not exchange republican for antirepublican Constitutions; a restriction which, it is presumed, will hardly be considered as a grievance.
The creeping acceptance of Shari'a in American courts and business practices certainly qualifies as the intrigue and influence of foreign powers. If it does not, then nothing on this Earth will.
Taking Madison's reasoning further into the arena of modern judicial combat, implementing any degree of Shari'a would violate the generous human rights provisions which are found in American State Constitutions and would constitute per se an illegal attempt (by the Legislature or a court as the case may be) to deny a person the protections of the Constitution of the State or limit the possible applicability of protections of the US Constitution to persons within that State.
This may seem extreme to some but an American should feel no more obligated to obey Shari'a (regardless of what the Legislature or a Court does) than he would be to obey a person who set up a monarchy in his State.
Reference: Article IV, U.S. Constitution at Wikipedia.
Why Sharia is Unconstitutional, and why Oklahoma should have left things alone
Oklahoma has decided to amend its Constitution to say that its judges may not consider or use Islamic Shari'a law. A Federal judge has stayed that for the time being.
There are at least four reasons why Shari'a is unconstitutional and should not be used in American courts, this Court could be wrong. First, if a civil court adopts shari'a per se it would be an unconstitutional as an endorsement of religion. I suppose if parties agree to have private arbitrations performed with reference to shari'a, that's their business. A court to be prudent should ascertain whether such an arbitration is voluntary, given the inequities which are inherent in shari'a from our point of view.
Second, and more importantly, when we understand that shari'a is not a matter of religious principles but a total system of life, we realize that shari'a as a system is already unconstitutional regardless of what Oklahoma does. This is because the U.S. Constitution says that the Federal government shall guarantee to each State "a Republican form of government." In other words, the United States will protect each State's government against usurpation by other forms of government which are not republican such as a monarchy, a Commmunist dictatorship - or an Islamic theocracy.
Third, I question whether and to what extent the U.S. government, in the person of a Federal judge, is able to simply draw a big "X" over a State constitutional provision. This should only be done in the clearest of circumstances, and only, in my opinion, where the U.S. Constitution has directly spoken. For example, no State could now amend its State Constitution so as to allow slavery.
Fourth, and least likely to prevail in our current environment, shari'a is against the American tradition which is built on the Christian tradition. As late as 1890 the Supreme Court could recognize that this is a Christian nation - not of course in the sense of having an established Church, but that the vast majority of people are Christian and our nation presupposes a Christian worldview. There is a secular way to uphold these principles if we reflect on the fact that our founding documents assert the values that come from the Protestant tradition - we hold these truths to be self-evident, that all men are created equal and that they endowed by their Creator with certain unalienable rights, etc. Now, the shari'a system of course doesn't recognize this at all since in Islam all men are not intrinsically equal by virtue of their humanity. In Islam, Muslims have more rights than non-Muslims, men more rights than women and so forth.
These four quick answers should be apparent to, at a minimum, any person in the United States who has been to law school. Yet, people do not speak against the political aspect of Islam, expressed through shari'a, because the Left is making common cause with Islam all over the world (a move they may live to regret).
As a side note, and as many have pointed out, doesn't Oklahoma by its Amendment simply uphold the purposes of the First Amendment to the Constitution of the United States? We could actually see Oklahoma's decision to propose such a specific Amendment as foolish because it gives people the opportunity to litigate matters which should never be litigated. It should already be clear because of the First Amendment that the shari'a comprises no part of the law of Oklahoma.
So why put that ball in play, so to speak?
Thank-you, CNN
Like many others, I rolled my eyes at the thought of CNN launching a show featuring former Governor of New York Eliot Spitzer and conservative-turned-moderate-enough-for-CNN Kathleen Parker. However, they might have done us a huge favor by broadcasting the views of Muslim cleric Anjem Choudary to an American audience.
Choudary puts the lie to the myths of Islamophobia. I can compliment Choudary, if for nothing else, for his honesty as he explains in this clip that he does support the imposition of shari'a law. It's actually refreshing to see him throw it out there without pretense.
Since Christiane Amanpour was not present to interrupt and make him look better, Choudary was captured saying, "They may say one thing to you in front of CNN. But I can assure you behind your backs, in every masjid [mosque] and every community center, they are standing with their Muslim brothers and sisters saying, We hope the Americans and British are pushed out of our countries, and we can implement the Sharia."
You mean to say that these folks actually LIE to CNN? Who would do such a thing?
This was too much even for a Democrat: Spitzer is either hamming it up or genuinely incredulous as he points out that Choudary should be arrested.
My question is why the British haven't expelled him and his followers from the U.K. Are they afraid to lance that boil and face the burning cars which have become a part of French life?
Watch the whole thing and see the real beliefs of Muslim radicals.
Sharia in New Jersey: Muslim husband rapes wife, judge sees no sexual assault because Islam forbids wives to refuse sex
And now a New Jersey judge sees no evidence that a Muslim committed sexual assault of his wife -- not because he didn't do it, but because he was acting on his Islamic beliefs: "This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited."
Luckily, the appellate court overturned this decision, and a Sharia ruling by an American court has not been allowed to stand. This time.
This type of thing is going to become more and more common. Destroying the actual meaning of the Constitution has intellectually perverted our judiciary so that special rights for groups (Islam, homosexuality...) trump individual rights under the law.
Interestingly, the US Constitution says that the Federal government shall guarantee to each State a "republican form of government." This not only excludes monarchy but the Shari'a law of the Muslims.
Mark Steyn on the lesson of a Jewish cemetery
Another important piece from Steyn in which he explores the new (and completely politically acceptable) antisemitism which unites Leftists and Islamists. Such a union has real consequences which are already being played out every day.
"By 2005, there were fewer than 150 Jews in Tangiers, almost all of them very old. By 2015, it is estimated that there will be precisely none. Whenever I mention such statistics to people, the reaction is a shrug: why would Jews live in Morocco anyway? But in 1945 there were some 300,000 in this country. Today some 3,000 Jews remain—i.e., about one per cent of what was once a large and significant population. That would be an unusual demographic reconfiguration in most countries: imagine if Canada’s francophone population or Inuit population were today one per cent of what it was in 1945. But it’s not unusual for Jews. There are cemeteries like that on the rue du Portugal all over the world, places where once were Jews and now are none. I mentioned only last week that in the twenties, Baghdad was 40 per cent Jewish. But you could just as easily cite Czernowitz in the Bukovina, now part of Ukraine. “There is not a shop that has not a Jewish name painted above its windows,” wrote Sir Sacheverell Sitwell, visiting the city in 1937. Not today. As in Tangiers, the “community” resides in the cemetery."
Will China work more closely with the Islamic world?
Chinese Foreign Minister Yang Jiechi met here Friday with Secretary-General of the Organization of the Islamic Conference (OIC) Ekmeleddin Ihsanoglu, pledging to enhance cooperation with the OIC.
Yang said the OIC is playing a more and more important role in international and regional affairs, and China is willing to further enhance exchanges and cooperation with the organization.
"China and the Islamic world shared a long-term friendship," Yang said. China hoped that the two sides would continue to support one another on issues concerning each other's core interests.
Joel Richardson on The Emerging Strong Horse of the Islamic World
The Other European Volcano
Few wanted to listen when it was pointed out — well before the Greek meltdown — that on key questions of demography and immigration, the future of the European Union was bleak. The very idea that, in historical terms, socialism, agnosticism, pacifism, and hedonism were not only interrelated and synergistic, but also suicidal for civilization, was considered crackpot.
Victor Davis Hanson needs to be read by more people.
US gets cozy with free speech foes
Few things are as alarming as the trend towards adopting Muslim sensibilities (read: theology) on freedom of speech. Jonathan Turley decries the Administration's acceptance of Muslim blasphemy concerns in USA Today. And with good reason.
While attracting surprisingly little attention, the Obama administration supported the effort of largely Muslim nations in the U.N. Human Rights Council to recognize exceptions to free speech for any "negative racial and religious stereotyping...."
Blasphemy prosecutions in the West appear to have increased after the riots by Muslims following the publication of cartoons disrespecting prophet Mohammed in Denmark in 2005. Rioters killed Christians, burned churches and called for the execution of the cartoonists. While Western countries publicly defended free speech, some quietly moved to deter those who'd cause further controversies through unpopular speech.
In Britain, it is a crime to "abuse" or "threaten" a religion under the Racial and Religious Hatred Act 2006. A 15-year-old boy was charged last year for holding up a sign outside a Scientology building declaring, "Scientology is not a religion, it is a dangerous cult. "In France, famed actress Brigitte Bardot was convicted for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and now President) Nicolas Sarkozy. This year, Ireland joined this self-destructive trend with a blasphemy law that calls for the prosecution of anyone who writes or utters views deemed "grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage."
Actually, lots of people are aware of this and talk about it but they are routinely derided as "Islamophobic."
Hat tip: Christopher Fountain.
