26 Jan Arizona’s Proposed Constitutional Amendment to Prohibit Laws of “Other Cultures”
I’ve been restrained in criticizing state laws that purport to ban the use of international or foreign law in state courts, as in Oklahoma and now one proposed in Arizona. I think they are largely harmless, and probably constitutional. But I am still struck by the unusual and even strange wrinkle in the Arizona proposal.
1. Requires courts, when making judicial decisions, to uphold and adhere to the laws of the U.S. Constitution, Arizona Constitution, U.S. Code, Federal regulations, established common law, Arizona laws and rules and if necessary, the laws of another state within the U.S. provided the laws in the other state do not include international law.
2. Prohibits Arizona courts from considering international law or legal precepts of other nations or cultures when making judicial decisions.
Emphasis added. The use of the word “cultures” is puzzling, and perhaps redundant. I don’t know if there is a constitutional or legal problem with it, but its meaning is mysterious to me.
Um, explain again how these laws are probably constitutional?
Am I getting this wrong or is this law useless? If the result of a choice of law analysis is that Arizona law should be used, other laws would not kick in. But, if the choice of law analysis says international law should be used, then this statute wouldn’t be relevant.
To the extent that it is constitutional (on which I have no legal basis to comment), I suggest the law might prevent (or at least is intended to prevent) using ‘international law or legal precepts of other nations or cultures’ when resolving ambiguity in the common law or statute interpretation. I am not advocating that position, just suggesting that is one possible interpretation of the proposal.
Response…
It would be unavoidably unconstitutional if adopted because the U.S. Constitution mandates in clear and unavoidable language that “all” treaties are supereme law of the land and binding on the states and state courts. The same result pertains with respect to customary international law through the phrase “laws of the United States” because CIL is part of the laws of the U.S. — see, e.g., http://ssrn.com/abstract=1485703
and re: treaties: http://ssrn.com/abstract=1484842
It looks like it’s trying to say ‘no use of sharia law’ without singling out Islam.
[…] Ku, Arizona’s Proposed Constitutional Amendment to Prohibit Law of “Other Cultures”, Opinio Juris (Jan. 26, […]
Does it define “international law”?
The provision as reported above seems to be very broadly drafted and on the face of it, this statute would purport to prevent an arbitrator from applying a “foreign” applicable law.