ARKANSAS JOINS RANKS OF STATES STANDING UP TO PROTECT CONSTITUTIONAL RIGHTS AGAINST FOREIGN LAW

By Christopher W. Holton

Vice President for Outreach

Center for Security Policy

Thanks to the tenacity and persistence of two key legislators in the Arkansas state capitol, Arkansas has joined the growing ranks of states that have moved to protect their citizens and residents from foreign laws and foreign legal doctrines, including Shariah, in state courts with the passage of a new law.

Representative Brandt Smith and Senator John Cooper combined to author American Laws for American Courts legislation, similar to legislation that has passed previously in Tennessee, Louisiana, Arizona, Kansas, Oklahoma, North Carolina, Alabama, Mississippi, and Washington.

The U.S. Constitution especially under the Bill of Rights, the first Ten Amendments to the Constitution, has a unique set of rights that are truly unique around the world. Rights like Freedom of Speech, Freedom of the Press, Freedom of Expression covered under the First Amendment, the Right to Bear Arms in the Second Amendment, Due Process, Equal Protection—all of these rights are uniquely American and are specified in our Constitution. Many foreign laws and foreign legal doctrines, including Sharia as just one example, as practiced around the world are in direct contravention of these rights. In fact, such rights do not exist in many foreign laws and foreign legal doctrines. When court cases arise in the United States involving foreign laws, there are inevitable conflicts with the U.S. Constitution.

The objectives and principals of American Laws for American Courts legislation are basically to ensure that a state court will not apply a foreign law or foreign legal doctrine if the application of that foreign law or foreign legal doctrine in the case at hand would result in the violation of any of the parties’ fundamental Constitutional Rights. American Laws for American Courts is not a blanket ban on foreign law. It is not even a ban on Sharia. It is a protection of individual fundamental Constitutional Rights. That is what American Laws for American Courts is all about.

American Laws for American Courts is necessary because we have seen over and over again cases involving foreign law and foreign legal doctrines appearing in U.S. Courts. Those who say that because we have Article VI of the U.S. Constitution we don’t need American Laws for American Courts are just ignorant about what is actually happening in our court systems. Article VI clearly is not protecting the fundamental Constitutional Rights of our citizens and residents in the United States against foreign laws and foreign legal doctrines. If it was, these cases wouldn’t be coming up and they are, by the dozens.

The need for an effective law preserving constitutional rights against the enforcement of unconstitutional foreign law is both real and urgent. The Center for Security Policy’s 2015 study, Shariah in American Courts: The Expanding Incursion of Islamic Law in the U.S. Legal System. The Center found 146 cases in 32 states in which a party to litigation attempted to have the matter resolved by applying shariah, rather than the statutes of the state in question. Included in this number were some appellate and several trial court cases in which the judges actually ruled for sharia over U.S. law.

American Laws for American Courts legislation also contains key provisions that have made it particularly effective in safeguarding fundamental Constitutional Rights:

• American Laws for American Courts is facially neutral.  In an honest debate, it cannot be accused of discriminating against any religion or protected class.

• The model American Laws for American Courts act also contains a specific provision for corporations and businesses so as not to interfere with commerce; it exempts Native American laws; it specifically says that the law cannot detract from the right to free exercise of religion, which would include religious courts like Jewish Bet Din or Catholic ecclesiastical courts; and it states that the law would not interfere with compliance with international treaties the U.S. has signed.

• American Laws for American Courts is not vague.  It provides specific instructions for judges on complex legal issues involving comity and choice of forum, thus closing potential loopholes for activist judges.

More states are expected to take up American Laws for American Courts legislation, as well as related legislation, such as the Free Speech Defense Act, in the 2018 legislative sessions.