. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.
At the end of the day, however, the US Constitution is the US Constitution. Is there merit in, say, looking at the Magna Carta for some idea of inspiration or whatever? That's a debate worth having. Trying to figure out if something is Constitutional based on current international law that doesn't impact the case at hand otherwise? Wildly inappropriate.
If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.
And the connection to sharia is just demagogic; even you should be able to recognise that.
Is it? The precedent for it exists now. Kennedy has used foreign law (http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm), Sharia has been deemed acceptable by domestic courts (http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/). Whether the fear is rare enough to be unfounded or not, these things actually happened, and this amendment is a ham-fisted reaction to it. Without knowing the specifics of the New Jersey case and their ability to use cultural indicators, Oklahoma is clearly drawing a line in the sand for their own litigation, which is within their rights.
If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.
So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem? As poorly done as this amendment is, I could see myself voting in favor of it in order to force the hands of the courts and push the lawmakers to shift the pendulum back a ways instead of the current system in place.
no subject
At the end of the day, however, the US Constitution is the US Constitution. Is there merit in, say, looking at the Magna Carta for some idea of inspiration or whatever? That's a debate worth having. Trying to figure out if something is Constitutional based on current international law that doesn't impact the case at hand otherwise? Wildly inappropriate.
If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.
And the connection to sharia is just demagogic; even you should be able to recognise that.
Is it? The precedent for it exists now. Kennedy has used foreign law (http://www.usatoday.com/news/washington/2003-07-07-foreign-usat_x.htm), Sharia has been deemed acceptable by domestic courts (http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/). Whether the fear is rare enough to be unfounded or not, these things actually happened, and this amendment is a ham-fisted reaction to it. Without knowing the specifics of the New Jersey case and their ability to use cultural indicators, Oklahoma is clearly drawing a line in the sand for their own litigation, which is within their rights.
If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.
So if you saw the problem, you'd vote against this on the basis even though the amendment is designed to fix the problem? As poorly done as this amendment is, I could see myself voting in favor of it in order to force the hands of the courts and push the lawmakers to shift the pendulum back a ways instead of the current system in place.