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U.S. State Legislation to Limit Use of International and Foreign Law

Published online by Cambridge University Press:  20 January 2017

Aaron Fellmeth
Aaron Fellmeth*
Affiliation:
Arizona State University
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Extract

International law is no stranger to controversy in the U.S. court system. The Supreme Court’s occasional citations to international law and foreign laws have generated debate in Congress, academia, and civil society, and between the justices themselves. In 2004 and 2005, “Constitution Restoration Act” bills were introduced into both houses of Congress that would have, inter alia, subjected federal judges to impeachment for any citation to international or foreign law (other than the English common law) when interpreting the U.S. Constitution. Neither bill was adopted, but they attracted five senatorial cosponsors and thirty-four in the House of Representatives.

Type
Current Developments
Information
American Journal of International Law , Volume 106 , Issue 1 , January 2012 , pp. 107 - 117
Copyright
Copyright © American Society of International Law 2012

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References

1 See, e.g., Cleveland, Sarah H., Our International Constitution, 31 Yale J. Int’l L. 1 (2006)Google Scholar; Kochan, Donald J., Sovereignty and American Courts at the Cocktail Party of International Law: The Dangers of Domestic Invocations of Foreign and International Law, 29 Fordham Int’l L.J. 507 (2006)Google Scholar; Calabresi, Steven, A Shining City on a Hill: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law, 86 B.U.L. Rev. 1335 (2006)Google Scholar; Gerhard, Michael J., What’s Old Is New Again, 86 B.U.L. Rev. 1267 (2006)Google Scholar; Farber, Daniel A., The Supreme Court, the Law of Nations, and Citations of Foreign Law: The Lessons of History, 95 Calif. L. Rev. 1335 (2007)Google Scholar.

2 See, e.g., Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer, American University Washington College of Law & U.S. Association of Constitutional Law, Constitutional Relevance of Foreign Court Decisions (Jan. 13, 2005), at http://www.wcl.american.edu/secle/founders/2005/050113.cfm; Anne E. Kornblut, Justice Ginsburg Backs Value of Foreign Law, N.Y. Times, Apr. 2, 2005, at A10.

3 H.R. 3799, 108th Cong., tit. II §201, tit. III §§301-302 (2004);S. 520, 109th Cong., tit. I§101, tit. II §§301-302 (2005). The bill would also have denied the Supreme Court jurisdiction to enforce the Establishment Clause against a state or federal government official who declared “God as the sovereign source of law, liberty, or government.” H.R. 3799, 108th Cong., tit. I §101 (2004); S. 520, 109th Cong., tit. I §101 (2005).

4 H.F. 2313, 83rd Gen. Assemb., §1 (Iowa 2010).

5 The bill reads, in relevant part:

(2) It is the public policy of this state that a court, arbitrator, administrative agency, or other adjudicative, mediation, or enforcement authority may not enforce a law enacted or a decision rendered by any legislative, judicial, or other governmental authority of a foreign nation or power if the law enacted or the decision rendered violated or would violate a right of the party against whom enforcement is sought guaranteed by the constitution of this state or the United States including due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.

(3) If any contractual provision or agreement provides for the choice of a foreign law or legal code or system to govern its interpretation or the resolution of any dispute between the parties, and if the enforcement or interpretation of the contract or agreement would result in a violation of a right guaranteed by the constitution of this state or of the United States including due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state, it is the public policy of this state that the agreement or contractual provision is considered modified or amended to the extent necessary to preserve the constitutional rights of the parties under the laws of this state or the United States. Any agreement or contractual provision incapable of being modified or amended in order the [sic] preserve these constitutional rights of the parties is null and void.

H.B. 296 1st Sub. (Buff), 2011 Gen. Sess. (Utah 2010). The reference to mediation is another surprising aspect of the bill; mediators, by definition, do not “enforce” law.

6 A pair of such bills, equating Sharia with a criminal conspiracy to violently overthrow the U.S. government and Constitution, became law in Tennessee in June 2011. See S.B. 1028 (Tenn. 2011) & H.B. 1353 (Tenn. 2011), codified at Tenn. Pub. L. ch. 497 (effective July 1, 2011). On the political machinations behind the bills, see Tim Murphy, Meet the White Supremacist Leading the GOP’s Anti-Sharia Crusade, Mother Jones, Mar. 1,2011, available at http://motherjones.com/politics/2011/02/david-yerushalmi-sharia-ban-tennessee.

7 In the New Jersey case, in late 2008 and early 2009, the husband allegedly raped his wife repeatedly. When she sought a restraining order to protect herself from future attacks, a New Jersey superior court judge found the order unnecessary, in part based on the theory that the defendant’s belief in Islamic precepts, giving husbands an absolute right to coerce sex from their wives, negated the intent element of criminal sexual assault. S.D. v. M.J.R., 2 A.3d 412 (N.J. Super. Ct. App. Div. 2010). In the Arizona case, an Iraqi man murdered his daughter in October 2009 for living with a man in the United States outside of her arranged marriage. He did not claim that Islam gave him any right to murder; he claimed, instead, that the killing was accidental. It was the prosecutors who characterized the murder as an “honor killing.” See Nadya Labi, An American Honor Killing: One Victim’s Story, Time, Feb. 25, 2011.

8 See Donna Leinwand, More States Enter Debate on Sharia Law, USA Today, Dec. 9, 2010, at http://www.usatoday.com/news/nation/2010-12-09-shariaban09_ST_N.htm; Sarah Wildman, America’s Rising Tide of Islamophobia, Guardian, July 28, 201 available at http://www.guardian.co.uk/commentisfree/cifamerica/2011/jul/28/islamophobia-united-states-terror.

9 S.D., 2 A.3d at 428. The jury in the Arizona case found the father guilty of second-degree murder with aggravating circumstances, and he now faces seventeen to forty-four years in prison. See Labi, supra note 7.

10 New Jersey bill A3496 §6, 214th Leg. (2010) defines “foreign law” to mean “any law, rule, or legal code or system established and used or applied in a jurisdiction outside of the United States or territories of the United States.”

11 Id., §3.b.

12 Id., §4. As worded, this provision seems to allow a business firm to seek, but to preclude an individual from seeking, enforcement of either a foreign law or a forum-selection clause in New Jersey courts in violation of an individual’s constitutional rights.

13 H.B. 88, 27th Leg., 1st Sess. (Alaska 2011).

14 S.B. 97, 88th Gen. Assemb., Reg. Sess. (Ark. 2011), as amended Feb. 1, 2011.

15 S.B. 1294, 2011 Reg. Sess. (Fla. 2011); H.B. 1273, 2011 Reg. Sess. (Fla. 2011).

16 H.B. 1078, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011); S.B. 520, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011).

17 S.B. 460, 2010 Reg. Sess. (La. 2010); H.B. 785, 2010 Reg. Sess. (La. 2010). The bills were adopted as Acts 886 and 714, respectively, and codified at La. Rev. Stat. Ann. §9:6001 (effective Aug. 15, 2010).

18 H.F. 489, 2011 Reg. Sess. (Iowa 2011).

19 S.B. 51, 2011-2012 Reg. Sess. (Ga. 2011); H.B. 45, 2011-2012 Reg. Sess. (Ga. 2011).

20 H.B. 2087, 2011 Reg. Sess. (Kan. 2011)a.

21 S.B. 308, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011); H.B. 708, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011); H.B. 768, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011).

22 Legis. Bill 647, 102nd Legis., 1st Sess. (Neb. 2011).

23 H. 3490, 119th Sess. (S. C. 2011); S. 444, 199th Sess. (S.C. 2011).

24 S.B. 201, 2011 Sess. (S.D. 2011).

25 H.B. 911, 82nd Sess., 1st Reg. Sess. (Tex. 2011); H.B. 3027, 82nd Sess., 1st Reg. Sess. (Tex. 2011).

26 E.g., S.B. 97 (Ark.), supra note 14, §2(a).

27 H.C.R. 44, 60th Legis., 2nd Reg. Sess. (Idaho 2010) (filed Feb. 17, 2010, adopted Mar. 29, 2010).

28 E.g., H.F. 575, 2011 Reg. Sess. § 3(b) (Iowa 2011) (religious law); H.B. 301, 2011 Reg. Sess. §1 (Miss. 2011) (died in committee) (Sharia).

29 H.F. 575 (Iowa 2011), supra note 28.

30 “Religious Sectarian Law” refers primarily to Sharia but also includes canon law and other religious codes.

31 H.B. 2582, 50th Legis., 1st Reg. Sess. (Ariz. 2011). The bill was passed by the House Judiciary Committee and was being considered in the Rules Committee when the legislature adjourned. Although the bill is functionally dead, it could be revived in the next legislative session.

32 H.B. 1240, 82nd Sess., 1st Reg. Sess., §148.001 (Tex. 2011).

33 For example, joint resolutions or senate bills died in committee or on the Senate or House floor in Alabama, Arizona, Arkansas, Florida, Maine, Montana, Mississippi, New Mexico, and West Virginia.

34 Bills in Kansas and Missouri have attracted strong support from state legislators. See H.B. 2087, 2011 Reg. Sess. (Kan. 2011); H.B. 708, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011); S.B. 308, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011).

35 H.B. 2064, 50th Legis., 1st Reg. Sess. (Ariz. 2011), codified at Ariz. Rev. Stat. §12-3101 to -3103 (LexisNexis 2011).

36 See supra note 17.

37 H.B. 4769, 96th Legis., 2011 Reg. Sess. (Mich. 2011); S.B. 701, 96th Legis., 2011 Reg. Sess. (Mich. 2011); Amendment No. 6 to H.B. 274,82nd Sess., 1st Reg. Sess. (Tex. 2011); Amendment No. 12 to H.B. 79,82nd Sess., 1st Sess. (Tex. 2011).

38 S.B. 62, 2011 Reg. Sess. (Ala. 2011); S.B. 33,2012 Reg. Sess. (Ala. 2012); S.C.R. 1010, 50th Legis., 1st Reg. Sess. (Ariz. 2011); H.C.R. 2033, 50th Legis., 1st Reg. Sess. (Ariz. 2011); S.J.R. 10, 2011 Reg. Sess. (Ark. 2011); S.J.R. 16, 117th Gen. Assemb., 1st Reg. Sess. (Ind. 2011); H.J.R. 14, 84th Gen. Assemb. (Iowa 2011); H.J.R. 31, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011); H.J.R. 1056, 52nd Leg., 2d Sess. (Okla. 2010); H.J. 0008, 61st Legisl., 2011 Gen. Sess. (Wyo. 2011).

39 H.J.R. 1056, 52d Leg., 2d Sess., as enrolled §1 (C) (Okla. 2010).

40 S.B. 62, 2011 Reg. Sess. (Ala. 2011); S.B. 33,2012 Reg. Sess. (Ala. 2012); S.C.R. 1010, 50th Legis., 1st Reg. Sess. (Ariz. 2011); H.C.R. 2033, 50th Legis., 1st Reg. Sess. (Ariz. 2011); H.J.R. 31, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011); H.J. 0008, 61st Legisl., 2011 Gen. Sess. (Wyo. 2011).

41 See Crook, John R., Contemporary Practice of the United States Relating to International Law, 105 AJIL 123 (2011)Google Scholar. The measure’s sponsor is reported to have admitted that no Oklahoma court had ever cited Sharia, but he characterized the law as, in effect, a preemptive strike. Stephen Clark, Group Launches Media Blitz in Oklahoma for Anti-Shariah Ballot Initiative, Fox News, Oct. 20, 2010, at http://www.foxnews.com/politics/2010/10/20/anti-islamic-group-launches-media-blitz-oklahoma-anti-shariah-ballot-initiative/.

42 Awad v. Ziriax, 754 F.Supp.2d 1298, 1307 (2010). The case is quoted at greater length in Crook, supra note 41, at 123-24.

43 Ziriax, Awad v., 754 F.Supp.2d 1298, 1307 (2010)Google Scholar, appeal docketed, No. 10-6273 (10th Cir. Dec. 2, 2010).

44 American Bar Assoc. House of Delegates, Res. 113A (Aug. 8-9, 2011), at http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions/201 l_hod_annual_meeting_113a.doc.

45 United States Belmont, v., 301 U.S. 324, 330–33 (1937)Google Scholar.

46 The Habana, Paquete, 175 U.S. 677, 700 (1900)Google Scholar.

47 See Alvarez-Machain, Sosa v., 542 U.S. 692, 729 (2004)Google Scholar.

48 However, even relatively restrained bills such as that of Louisiana, see supra note 17, could be read to prohibit a contractual waiver of state or federal constitutional rights in an agreement governed by foreign law. For example, an agreement under foreign law not to reveal trade secrets, national security information, or data protected by the European Union Data Privacy Directive could be interpreted as void for violating a contracting party’s right of free speech. See Parliament and Council Directive 95/46/EC, 1995 O.J. (L 281) 31. For this reason, some, but not all, bills specifically provide that waivers of such rights are enforceable.

49 Some bills allow citation to English precedents, which would nonetheless, for reasons that are unclear, preclude reference to Scottish cases.

50 The divisive and histrionic rhetoric of “un-Americanism” is popular with certain groups in civil society who both oppose and support the citation of foreign law in U.S. courts. E.g., Phyllis Schlafly, Harold Koh Is Too Dangerous for America, World Netdaily, May 27, 2009, at http://www.wnd.com/index.php?fa=PAGE.view&pageld=99288; see also Jay Newton-Small & Sophia Yan, How the Republicans Will Go After Sotomayor, Time, July 13, 2009, at http://www.time.com/time/nation/article/0,8599,1910084,00.html (quoting Sen. Jon Kyi).

51 E.g., Miller, Zschernig v., 389 U.S. 429 (1968)Google Scholar; Container Corp. of America Franchise, v. Tax Bd., 463 U.S. 159 (1983)Google Scholar; Nat’l, Crosby v. Foreign Trade Council, 530 U.S. 363 (2000)Google Scholar.

52 The act is available at http://www.nccusl.org/Act.aspx?title=Foreign%20Money%20Judgments%20Recognition%20Act.

53 The act is available at http://www.nccusl.org/Act.aspx?title=Foreign-Country%20Money%20Judgments%20Recognition%20Act.

54 See David Caron, The Save Our State Amendment and Scotus: Why We Go to Miami, ASIL Newsletter, July/Sept. 2010, at 1, 6-7, available at http://www.asil.org/files/Newsletter2010Q3Final.pdf.

55 Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25,1980, TIAS No. 11670, S. Treaty Doc No. 99-11 (1985) (entered into force for the United States July 1, 1988).

56 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, opened for signature May 29, 1993, 1870 UNTS 167 (entered into force May 1, 1995).

57 Even nonbinding guidance by intergovernmental and nongovernmental organizations incorporated by the parties as essential terms in a contract would be rendered unenforceable by some of the bills and proposed amendments. The International Chamber of Commerce’s widely used Uniform Customs and Practices for Documentary Credits or its Incoterms could be rendered inoperable in contracts with citizens of affected states.

58 U.S. Const. Art. I, §10.

59 N.Y. Const. Art. I, §§16-17 (2010).

60 Iowa Const. Art. I, §24 (amended 1857).

61 Ariz. Const. Art. II, §26 (2009).

62 See Gulf Oil Corp. Gilbert, v., 330 U.S. 501, 508 (1947)Google Scholar (“[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”).

63 See Piper Aircraft Co. Reyno, v., 454 U.S. 235, 255–56 (1981)Google Scholar.

64 See Gulf Oil Corp., 330 U.S. at 508-09; Restatement (Second) of Conflict of Laws §84 cmt. c.