State constitutions as interactive expressions of fundamental values.

• Author: Long, Justin R.
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

Given the awful event in their history, (1) it must be comforting for Oklahomans to imagine that terrorism comes at them from afar. False, but comforting. So perhaps we should not be surprised to learn that when Oklahoma voters recently ratified a state constitutional amendment (2) barring their courts from "look[ing] to the legal precepts of other nations or cultures" or "consider[ing] international law or Sharia law," they did so by an overwhelming majority. (3) In fact, some journalists attribute the amendment in part to a partisan hope that its inclusion on the ballot would drive up Republican voters' turnout at the polls--presumably because ordinary Oklahomans were even more enthused by this bigoted proposal than they were by the Republican politicians. (4)

While the amendment itself is obviously a poisonous stew of stupidity, fear, and hate, it cannot be blamed on the irrationalities of state constitutional popular initiatives. (5) The question was placed on the ballot by Oklahoma legislators, who voted for it by 82-10 in the House and 41-2 in the Senate. (6) With such strong support for the proposal in the legislature, a statute to the same effect would likely have succeeded easily. So what did Oklahomans hope to achieve by placing the text in the state constitution?

In this essay, I argue that the Oklahoma amendment illustrates the use of state constitutions to express and contest a political community's identity and defining values. In Part I, I examine those values and their cultural context more closely. (7) Among the values implicit in the amendment's text is a profound ambivalence toward American courts and the federal Constitution; ironically, the extremism of the amendment all but guaranteed that courts would play a central role as a forum for the debate on American identity the amendment seeks to provoke. The amendment's status as a state constitutional text is crucial to both this court-denigrating purpose and its court-elevating effect. In Part II, I show that the political community at stake is national, as contemporary state constitutional scholarship has argued. (8) The state constitution works here as a tool for the majority of Oklahomans to enact--that is, to perform--their vision of what it means to be American, and simultaneously to challenge their fellow citizens to adopt the same values. Finally, I conclude that Oklahoma's amendment reflects the power and potential of state constitutions today. (9)

PART I

The supporters of Oklahoma's amendment seek to reflect and install a particular conception of American identity; they seek to define who is us and who is them, while asserting that that definition has already been accomplished. (10) The most telling illustration of this comes from the two core sentences of the text: "The courts [of Oklahoma] shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law." (11)

These sentences require judges to understand what "other ... cultures" (12) are (non-white? non-Christian?), and if they do not, it informs them that Sharia law is an example of legal precepts from an "other" culture. (13)

In this way, Muslim Americans who observe principles of Sharia in Oklahoma are defined as fundamentally outside the political community that authors the state constitution. By coincidence, the lead plaintiff opposing enforcement of the amendment, Muneer Awad, is a native-born American citizen and a graduate of the University of Georgia Law School. (14) For him, Sharia does not come from an "other" culture--it is his own, and therefore as American as anything else about him. (15) Not only the text, but also the authors' subjective intent, marginalizes Muslim Americans. One of the amendment's authors, for example, has explained that the amendment demonstrates "an awakening of people concerned about Christian values in our nation, and they are starting to express themselves." (16) Another legislative author of the amendment, Rex Duncan, defended the proposal on national television by positing that America is a "Judeo-Christian" nation. (17) For these elected officials, Sharia is not only apart from the religious values that define "our" nation, it is in opposition to them. Awad and Duncan hold theologically incompatible religious views, which is common enough in a pluralist society. Duncan, however, seeks to constitutionally define the political community not in terms of "public reason," (18) but in terms that exclude Awad and others who do not share Duncan's own social and theological identity. The "farmer and the cowman should be friends" (19) in Duncan's Oklahoma, but not with the imam.

My purpose here is not to defend, or even to examine, the merit of Sharia legal principles (although their requirement that Muslims obey the secular law of the land (20) might present a paradox for a Muslim judge under the amendment). I make no claim as to whether any parts of Sharia are compatible or incompatible with contemporary American legal principles. In practice, if a particular precept of Sharia is lawful under American law, then by definition there is no law to prohibit its application; if a precept conflicts with American law, then its application is plainly unlawful and...