Monday, September 20, 2010

To the barricades in Oklahoma

When it comes to manning the bulwarks of liberty, we can count on the Oklahoma state legislature to be the first to answer the call whenever America is threatened by enemies domestic or foreign, real or imaginary.

As part of the modestly titled "Save Our State" constitutional amendment passed by the legislature and on the ballot in November, state courts would be barred from "considering or using" international law or Sharia law. The initiative, explained its chief sponsor, Rep. Rex Duncan (R), "will constitute a preemptive strike against Sharia law coming to Oklahoma . . . While Oklahoma is still able to defend itself against this sort of hideous invasion, we should do so." Duncan said it was also a "preemptive strike" against "liberal judges" who want to "undermine [the] founding principles of America."

Not to be outdone, Newt "America At Risk" Gingrich brought the crowd at the "Value Voters Summit" to its feet over the weekend by proposing a federal law to the same effect.

Most Americans were probably unaware that the Oklahoma courts were about to be invaded by legions of fatwah-issuing mullahs craftily disguised as liberals. But the larger conservative propaganda line about "unelected" "activist" judges who try to write the law rather than just "enforce" it — which lies behind such fantasies — has been far more successful in penetrating the American consciousness, even though it constitutes just as great a distortion of legal and historical reality.

The fact is that from the founding of our nation, judges have always made the law and not merely enforced it; they have regularly cited foreign and international precedents; and they have frequently "considered or used" international law — also known as "the law of nations" — in deciding admiralty cases, disputes involving foreign countries or citizens of foreign countries, and the laws of war.

Once again, it is striking how those who talk the loudest about the good old days of the Founders and original constitutional principles are invariably the least informed about any actual history. During the debates over the Constitution, it was (interestingly) conservatives who were most adamantly in favor of insulating judges from the passions of popular democracy, the most adamantly in favor of judge-made law, the most adamant about curbing the power of state legislatures to interfere with the English common law that America's courts had inherited.

American and English common law was in its roots entirely judge-made law: it was an accumulation of basic legal precepts and precedents, and to James Madison and other authors of the Constitution it was one of the cornerstones of American liberty — and one that was suddenly being threatened by an "excess of democracy" as state legislatures passed a tidal wave of ill-considered statutes that abrogated contracts, catered to special interests, and created confusion and uncertainty as new laws were passed and repealed with dizzying rapidity.

Conservatives love to repeat the line that Chief Justice John Roberts used in his confirmation hearing  about the role of judges being properly confined to "calling balls and strikes," but that has never been the role of judges under the American-English system of common law (as Roberts, a graduate of Harvard Law School, surely knew). Virtually every court decision involves an examination of what is called "case law": previous precedents established by previous "activist" judges "making" the law.

When I was researching my new book on the War of 1812, I read a number of fascinating federal court rulings concerning trading with the enemy, the validity of seizures of merchant vessels, and other like issues raised by the war against Britain on the high seas. Many dealt with situations that had not before arisen in America, and all extensively examined not just English case law but the rulings of admiralty courts throughout the civilized world (even — horrors — France) in an attempt to ascertain the basic principles of the "law of nations" that should apply.

The claim that citing foreign law "undermines the Founding principles of America" would certainly be news to the Founders.

The Oklahoma initiative is remarkable in that it specifically defines international law as including treaties — which that Constitution that the tea partyniks like to wave around explicitly defines as the supreme law of the land (" . . . all Treaties made, or which shall be made, under the Authority of the United States, shall be 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").

P.S. It is a historical fact that conservative alarm over "activist" "liberal" judges arose for the first time in the 1950s, when Federal courts began ordering the desegregation of schools.


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