Back in November, we blogged twice about Oklahoma’s new constitutional amendment forbidding courts from considering international law or foreign law, especially Sharia. The American Constitutional Society has since published a short paper, Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives, in which Martha Davis and Johanna Kalb discuss the amendment and other similar proposals. The analysis of the Oklahoma law is worth reading, but what’s more eye-opening is the review of what’s been proposed elsewhere. A 2004 federal bill would have allowed impeachment of federal judges who rely on foreign or international law. Measures similar to Oklahoma’s, though without the specific focus on Sharia, have been proposed in Arizona, Idaho, and South Carolina.
By far the most audacious, however, is a proposed Iowa law that states that, under penalty of impeachment:
A judicial officer shall not use judicial precedent, case law, penumbras, or international law as a basis for rulings. A judicial officer shall only use the Constitution of the United States, the Constitution of the State of Iowa, and the Code of Iowa as the basis for any ruling issued by such judicial officer. The only source material that may be used for interpreting the Constitution of the United States by a judicial officer in this state shall be the Federalist papers and other writings of the founding fathers to describe the intent of the founding fathers, and if such source material is used, the full context of the source material must be used by the judicial officer.
This would, in effect, turn Iowa into France. What do I mean by that? The main distinguishing factor between the civil law system adopted by France and other countries, and the common law system which the U.S. inherited from England, is the role of judges and precedent.
In a common law system, prior cases are generally treated as precedents that make the rules, and judges have a role in shaping the law–indeed, many legal principles in the U.S. (and more in England) are not codified in statutes at all. In a civil law system, by contrast, prior judicial decisions are generally not considered binding precedent, and the written code is paramount.
I have no doubt that Iowa will not enact this law, but it is astonishing that a state legislator could be so ignorant about the basic principles of the U.S. legal system. As written, this law would require the Iowa courts to ignore binding decisions of the U.S. Supreme Court interpreting the Constitution. That could make for some interesting decisions–Iowa courts could get to decide, for themselves, whether segregation is constitutional, for example–but it contravenes the U.S. Constitution’s rule that federal law, including decisions by federal judges, is binding on states. (The law is also crazy in other respects, such as the idea of being restricted to the “writings of the founding fathers” to interpret constitutional amendments that were enacted decades or centuries after the founding.)
What’s especially bizarre about this trend is that, if anything, the influence of international law in U.S. courts is less than it’s been for most of U.S. history. International law and foreign law was commonly cited in the early days of the Republic, and judges–especially federal judges–were expected to know basic international law principles. In the first 50 years of our Supreme Court, the words “international law” or “the law of nations” appeared in 168 cases; in the past 50 years, they have appeared in only 146 cases. If there is a crisis here, it’s a crisis of misunderstanding our own legal system and history.