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Religious Law as Foreign Law in Constitutional Interpretation

A forthcoming edition of the International Journal of Constitutional Law includes an article by Harvard professors Adam Shinar and Anna Su entitled, "Religious Law as Foreign Law in Constitutional Interpretation." The abstract is below

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The ultimate import of our claim is not that religious law should be used by courts, but that recognizing its potential as a source in constitutional interpretation should result in a deeper and more careful engagement with the possibilities it generates.

The U.S. Constitution is a common law document and the common law is founded upon ancient custom, natural law and right reason. As such, natural law would seem to be a logical and legitimate source by which to interpret the U.S. Constitution - and religious law would seem to be a promising guide by which to discover the natural law. However, entrusting judges with the authority to scrutinize religious law and decipher the natural law seems to be nothing more than conservative rhetoric for the adoption of a "living constitution."

Furthermore, the authors - who seem to favor the adoption of foreign law in U.S. courts - are not likely contemplating Catholic canon law or Jewish Halakha, but rather Islamic Sharia law. Those who might feel inclined to sympathy toward the use of religious law in U.S. courts should consider well which religious law will be employed and the likelihood that religious law would be subverted to bolster progressive ends which will prove anathema to those of faith. 

Insofar as religious law - and religion itself - historically cultivated American law, it is a relevant and proper guide to the interpretation of the original meaning of the constitution's text. But as a persuasive authority to which judges may turn for inspiration in updating an evolving constitution, religious law is no less dangerous than French law. 

H/t: Mirror of Justice.

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Discussions - 4 Comments

A court imposes a ruling on me or mine using Islamic Sharia law over my dead body.

And for those thinking I'm just some redneck bloviating, I point to the recent assault case in Pennsylvania, which might as well as cited Sharia law in the ruling, for all its difference.

Make no mistake about it--if not nipped in the bud, we will see this code infiltrating the law. Its entire spirit is from a pre-Age of Enlightenment time, and has no place in our "Empire of Liberty".

The authors of the abstract are Harvard Professors. Given that The Most Intelligent President Ever graduated from Harvard, can one expect much more.

Liberals always try to be coy and shy about their real intentions. I.e. birth control, abortion, immigration, the separation of church and of course "their intrepretation of the Constitution", which is soooooooo different from that of the Founders.

Not sure what you mean by calling the U.S Constitution a "common law document." It was written by a special convention and ratified by the people, in the states. Common law is a collection of precedents from courts that accumulated over centuries. But I assume you know all that, and I'm still not sure what you're driving at.

It's also true that in the 18th century, the ideas of the law of nations were connected with the law of nature, as in Vattel. And the founders did not think it was a mistake to use such laws when determining the rights and duties of the U.S. government in foreign affairs. Nowadays the Left views the law of nature as religious.

Finally, it might be worth noting that our Judicial oath, which says that judges will do equal right to the poor and the rich, comes from the Bible, probably with a pit-stop in England.

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