Friday, October 29, 2010

Oklahomans to vote on Nullification

Nullification; a defunct and unconstitutional legal tactic employed in the early days of the Republic and later in an effort to deprive the Civil Rights of African Americans in the 1950's appears to be making a comeback in Oklahoma. Thus far it seems that all of the attention garnered by this silly proposal has been directed at the line that would prohibit Sharia (a highly controversial form of Islamic religious law) from being considered by any court in Oklahoma. Big deal. This is just more of the hysterical Muslim-bating that the far right has been engaged in all year. There are probably less than 10,000 Muslims in the whole state. But fear mongering and religious bigotry have a long and venerable history in American politics so one should not be surprised. That however, is not the real story here.

The part that the media keeps missing is where the courts are also told to disregard International Law. No. I am not kidding. Apparently the author of this inanity, state representative Rex Duncan (R) failed 11th grade US History and Civics (or maybe he didn't but I am trying really hard to give Oklahoma the benefit of the doubt here). In any event had he paid attention he would have taken note of the following...
"...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."
-Article VI Constitution of the United States of America

So, Rep. Duncan apparently approaches the US Constitution in much the same manner that liberal Catholics do their church's doctrine, i.e. the cafeteria approach. Either that or he is trying to lay the groundwork for treason (i.e. secession). Of course there is a third possibility, one which out of charity I am inclined to credit as the most likely explanation. That being that he is simply a Know Nothing xenophobic bigot, pandering to the radical right, who would miserably fail the same civics test required of immigrants seeking Naturalized Citizenship.

Maybe I am wrong. But for Oklahoma's sake; I hope not. In any event a fairly overwhelming case could be made that he has violated his oath of office which even at the state level requires support of, and obedience to, the Constitution of the United States.


gdelassu said...

Given that common-law systems routinely look to precedent from other common-law systems, I wonder how the Oklahoma legislature (if this bill passes) intends to deal with Oklahoma supreme court decisions that cite English, Irish, Canadian, etc. precedents as authority for their final decisions. Do existing decisions get grandfathered in, or do they become null on passage of this bill? See, e.g. Gomes v. Hameed, 184 P.3d 479, 494 (Okla. 2008) ("[I]f the rule to be adopted today is one of American common law but found neither in Oklahoma jurisprudence nor in the common law of England, litigants and their lawyers should not be bound to notice its existence sans proof." (emphasis added)). Also, what sort of teeth will the legislation have. Will judges really be disciplined simply for mentioning in a decision that some other country does such-and-thus?

Anonymous said...

Your snip from the Constitution is true as far as it goes, but not the whole story. Treaties are made by the Executive branch with the concurrence of 2/3 of the Senate:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur..

They are not the undefined 'understanding' or common ways of thinking of the international community. Treaties are well-defined, whereas the concept of 'international law' tends to mean whatever the prevailing zeitgeist says it means.

August said...

Actually, nullification has been going on in various forms for a while, the most obvious being Calfornia's marijuana laws.

We need this because the federal government can't be bothered to hold itself to the Constitution. Somebody has to do something, and it might as well be the states, since they (okay just 13) were the signatories to the Constitution in the first place. Sharia law in Oklahoma- I agree that's a strange thing to even have on the ballot, but the use a process (like nullification) in the pursuit of wacky aims doesn't negate the legitimacy of the process.

Meanwhile, the repeated violations of the Constitution perpetrated by the Federal government renders them illegitimate. They can't derive their power 'from the people' through a document they trample on.

John (Ad Orientem) said...

The applicable line on the ballot fails to make any differentiations. It prohibits the use of International law by the courts of the state. That would include all of our country's treaties. I stand by my post. The man is either a xenopobic idiot or something more sinister and dangerous.


The Anti-Gnostic said...

Secession is not treason, which is why none of the Confederacy's leaders were tried for it. The US is kept together by force of arms.

The Anti-Gnostic said...

"Maybe I am wrong. But for Oklahoma's sake; I hope not."

Or what--Muslims will decamp from Oklahoma?

Anonymous said...

I just read the text and agree it is vague, but I don't think it would be purposely so. I would hope not anyway. I would think that the intent is to disallow the consideration of treaties between other countries other than the US. For example, not quoting or consulting agreements or treaties made between the member states of the EU in court, or something along those lines. Or not using something vague like 'international opinion' as a basis for a ruling. It does need different language though. These are politicians after all, and usually just slap things together without even reading them. I don't think it would be a big conspiracy though, especially considering that any ruling contrary to the Constitution would be struck down by the Supreme Court. I think this is just poor choice of language. Could be wrong though - hard to trust any of them nowadays.

John (Ad Orientem) said...

Secession is not treason, which is why none of the Confederacy's leaders were tried for it. The US is kept together by force of arms.

That was debatable at the time. A failure to prosecute for a crime does not necessarily mean that a crime did not occur. And the courts have definitely ruled secession to be illegal (see Texas v White 1869). In any event it is not debatable any more. There has been a change in circumstances notably the ratification of the 14th amendment. This effectively establishes the sovereignty of the United States. It also makes all citizens of the states US citizens. No state can secede from the Union today(irrespective of what might have been legal in 1860). No state can deprive an American of their citizenship nor can it seize the sovereign property of the United States.

Secession is treason.

The Anti-Gnostic said...

No state can secede from the Union today(irrespective of what might have been legal in 1860).

Sure they can, they just don't have enough guns. Yet.

And I'm betting the Muslim enclaves that are now taking root on US soil will be among the first to exit.

Anonymous said...

Actually,Duncan approaches the Constitution the same way that conservative Catholics approach their church's doctrine, (Anything to do with money and power is sacrosanct while sexuality is forbidden).

I'm rather tired of the cliche about "cafeteria" Catholics when it's obvious that everyone, Orthodox included, is busy doing the same thing.

As for Muslim enclaves, I'd like to see some proof that there really are such entities and how they're different in nature from survivalist enclaves.