I believe Sen. Kruse’s SB 90 is properly understood as part of the non-existent Sharia menace.
Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution.
This part strikes me as gratuitous. What court in the U.S. is subordinating constitutional rights to foreign law? The whole scheme of statutory construction is premised on the notion that laws are unenforceable if they violate the constitution. So far as I know, foreign law is recognized as, at most, persuasive authority. That can change if, for example, parties have contracted to have their rights determined under a choice of law in a foreign jurisdiction, in which case the courts can be asked to determine the intent of the parties as to their rights under the contract by interpreting the law of a foreign jurisdiction.
The bill goes on to say that a foreign choice of law provision in a contract is void if it would violate someone’s constitutional rights. I think this is already a principle of contract interpretation, but it mostly does not come up because constitutions typically constitute the bounds of appropriate government behavior and not relations between private parties. So you can, for example, enter into a non-disclosure agreement without violating the First Amendment guarantee of free speech. On the other hand, a contract to enslave yourself is unenforceable.
I don’t know that this bill has any practical application. I think it’s properly understood as another chapter in the Great Sharia Freakout. See also.
They’ve been listening to their own narrative that conservative judges always interpret the Constitution correctly, while liberal judges just sit around asking themselves what France would do.
What court in the U.S. is subordinating constitutional rights to foreign law?
Once again, much like “death panels”, it is conservatives extrapolating from current events.
I’ve definitely heard the topic discussed on Levin’s show, I believe it is an extrapolation of something Sandra Day O’conner has said.
BTW, I believe that the “Sharia Law Freakout” (nice one!) is a result of what is happening in Canada. The conversation is being driven by Mark Stein, a Rush fill-in host.
Again, it is extrapolation.
Even if we accept the premise that courts are subordinating (or will) the Constitution to some foreign law; why would a mere statute such as this one do anything to constrain them? If they’ll ignore the Constitution, presumably they would have even less problem ignoring a statute.
If you believe this type of thing, you might as well fight the fight. Who knows, the legislation of the current group might be more meaningful to the rogue judge than a bunch of guys that were around in 1816 (or something like that). I am not a big proponent of this law, but if legislators think this is a concern, they might as well indicate where they stand by passing the law.
It could have pernicious effects if courts decided that, o.k., since they specified one kind of thing that’s not allowed to supersede the Constitution; that opens the door to divining an intent that everything not specified can supersede the Constitution.
I had a conversation not too long ago with one of these anti-Sharia warriors. He and his friends point to a couple of lower state court decisions where Sharia was allowed under a free exercise challenge. Of course, appellate courts overturned the state trial courts under the Oregon v Smith precedent, but he ignored that part.
As he stated, the anti-Sharia crowd’s goal is to have Islam excluded from free exercise protection because Muslims are ALL out to kill conservative white people living in very rural southern Indiana, or something.
I tried to explain to him how the Valid Secular Policy test currently being employed by the SCOTUS does not allow for free exercise protection when a valid public policy with no religious aims is in place. He accused me of supporting a violent religion and threatened to come to my house and kick my ass.
Buzz– It’s odd that O’Connor cited those two cases as instances where foreign opinion mattered. Did we really need foreign opinion to tell us that executing people who are mentally retarded is wrong? Or that prosecuting consenting adults for having sex within their own home was wrong? I think her statements reflect poorly on her and don’t show a need for some reactionary law to be passed.
Thanks for pointing this out — I am just appalled at the likes of Kruse, (and Borders and Waterman from last year) who continue to clog up the process with these inane proposals…..in my mind, these legislators (and their supporters) should be lampooned, ridiculed and driven from office. Years ago (when I worked in the state house) Kruse was one of the Goals 2000 warriors and saw all sorts of nefarious (and imaginary) conspiracies surrounding federal education policy. And before that, there was the anti regional government fantasy, then championed by State Sen Gene Snowden, which argued that the organization of the federal government into its 10 regions was unconstitiutional….just amazing….
You guys have excellent points, but I’m not arguing for the Sharia Freakout. I just want to explain to you where these movements are coming from, so perhaps you will have some empathy for their side, even if you still disagree with them.
These are the kinds of discussion that sometimes happen on talk radio, and it’s when I personally change the channel. But that doesn’t mean that other people don’t take them very seriously, and there’s nothing wrong with that.
BuzZcut….we appreciate that these discussions are taking place on talk radio etc, but that does not make them worthy of pursuing legislation or other changes in public policy. To me it’s a form of pandering to the uneducated and ignorant elements of society. Our state legislators should be above this. Senators kruse, delph, waterman, reps turner, borders — and many many more — have made careers out of this ignorant pandering.
I am a long time fan of Mark Steyn – he is prolific, witty, articulate and one of the best commentators out there. But he has become somewhat of a islamaphobe with his writings on Eurabia etc.
In the meantime I will ridicule the legislators like kruse who clog the legislative process with their pettiness and pandering….
If conservatives would just acknowledge that separation of church and state is part and parcel of our Constitution, then there would not be a problem. But they are determined to foist their version of Christian Sharia law on the entire populace, so they have a dilemma.
“separation of church and state is part and parcel of our Constitution”
My copy must be incomplete – can you point me to the part of the Constitution that says this? The two references to religion that I can find don’t seem to equate to what you’re saying.
Maybe the Office of the Senate Chaplain can provide you with the reference you’re looking for…
we appreciate that these discussions are taking place on talk radio etc, but that does not make them worthy of pursuing legislation or other changes in public policy. To me it’s a form of pandering to the uneducated and ignorant elements of society.
I don’t agree. First up, I don’t think that the talk radio element is ignorant, far from it. Next up, while this would not be the legislation I would support, it’s no worse than the 800 odd bills that will more than likely be put forth this session.
I am totally, 100% for Delph’s immigration bill. We just had another likely illegal immigrant with previous DUI’s kill someone the other night. This is a common problem in Lake County. Our prosecutor and judges just won’t get the illegals off the road.
Why are we so concerned about international law when we have thousands of laws at both the state and federal levels that already violate the Constitution?
I agree with B. The so-called conservatives who are calling for state laws to regulate immigration to me seem to be out of control liberals, creating more government (at the state level) — they also forget that immigration is a federal responsibilitiy – do “liberals” like Mike Delph ever read the constitution? A patchwork quilt of 50 state laws on immigration would be a nightmare. It’s pretty much acknowledged that Hoosiers (and most Americans) wont take the jobs that migrants fill…..Delph and his ilk also seem to ignore the rich historical contributions that immigrants have made to American society…yes, the feds need to get hteir act under control, but Delph’s bill is about the worst idea (and he has many bad ideas) that he could come up with.
So, Joe, what would you have police do when they pull somebody over who doesn’t have a license (which is a pretty damn good indication that they’re illegal).
I think that they should have to prove who they are and that they’re here legally, which is the essence of Delph’s bill.