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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?
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.
Federal Judge rips fraud and deceit in Gulf moratorium case. Nobody cares.
It's astounding that no one other than people like Michelle Malkin even seem to care about the behavior of Interior Secretary Ken Salazar, who was ripped to shreds by a Federal Judge for misrepresenting the experts. Judge Martin Feldman said:
In the Executive Summary to the Report, [Salazar] recommends “a six-month moratorium on permits for new wells being drilled using floating rigs.” He also recommends “an immediate halt to drilling operations on the 33 permitted wells, not including relief wells currently being drilled by BP, that are currently being drilled using floating rigs in the Gulf of Mexico.”
Much to the government’s discomfort and this Court’s uneasiness, the Summary also states that “the recommendations contained in this report have been peer-reviewed by seven experts identified by the National Academy of Engineering.” As the plaintiffs, and the experts themselves, pointedly observe, this statement was misleading. The experts charge it was a “misrepresentation.” It was factually incorrect.
In other words, as Malkin says, he lied.
Why? Do these people not know that oil rigs can be transported to other places, like Brazil, and undoubtedly will be - making the temporary job losses permanent in the Gulf?
Judge Kozinski admonished for explicit items on Web site - CNN.com
WASHINGTON (CNN) -- A judicial council on Thursday admonished the chief judge of the nation's largest federal appeals court for having "sexually explicit photos and videos" on his personal Web site, but decided against any further punishment.
The panel chose not to discipline Judge Alex Kozinski beyond the admonishment.
Judge Alex Kozinski, 58, of the San Francisco, California-based 9th Circuit U.S. Court of Appeals previously apologized and had recommended an investigation because of the public controversy over the material.
A panel of judges assigned to investigate concluded Kozinski's "possession of sexually explicit offensive material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent." His actions, the panel wrote, "can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary."
That's putting it mildly. This was really disturbing and I'll spare you the details. The CNN article doesn't play up his conservatism too much but you can expect more reference to conservative hypocrisy as this cycles through the tubes of the internet.
