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Exceptionalism Unbound: Appraising American Resistance to Foreign Law Catholic University Law Review Volume 65 Issue 3 Spring 2016 Article 8 6-22-2016 Exceptionalism Unbound: Appraising American Resistance to Foreign Law Mark C. Rahdert Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the First Amendment Commons, and the Religion Law Commons Recommended Citation Mark C. Rahdert, Exceptionalism Unbound: Appraising American Resistance to Foreign Law, 65 Cath. U. L. Rev. 537 (2016). Available at: https://scholarship.law.edu/lawreview/vol65/iss3/8 This Article is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Exceptionalism Unbound: Appraising American Resistance to Foreign Law Cover Page Footnote Professor of Law, Temple University Beasley School of Law. This article is based in part on a presentation I gave at a conference entitled “Through the Looking Glass: National Engagement with International and Foreign Law & Government,” sponsored by Monash University and held in Manly, Australia in December 2010. Portions of the article (including portions of the Introduction, Parts I (B) and II, and the Conclusion) are drawn from that earlier presentation. I would like to thank Dean Bryan Horrigan, who organized the conference, and the other participants for their helpful comments and suggestions. I would also like to thank Kelsey Lee for her research assistance. Lastly, I’d like to thank Dean JoAnne Epps and Temple University for their generous research grant support. This article is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol65/iss3/8 EXCEPTIONALISM UNBOUND: APPRAISING AMERICAN RESISTANCE TO FOREIGN LAW Mark C. Rahdert+ I. BANNING SHARIA: CONSTITUTIONAL LIMITS ON RELIGIOUS EXCEPTIONALISM ................................................................................. 551 II. WHOLESALE EXCEPTIONALISM .................................................................. 562 A. Four Levels of AFIL ............................................................................ 564 1. Jurisdiction ................................................................................... 565 2. Rules of Decision .......................................................................... 566 3. Matters of Interpretation............................................................... 567 4. Questions of Evidence ................................................................... 569 B. The Wisdom of Wholesale Exceptionalism .......................................... 569 1. False Premises .............................................................................. 570 2. Overbreadth. ................................................................................. 573 3. Non-necessity and Inefficiency ..................................................... 574 4. Uncertainty ................................................................................... 578 5. Unenforceability ........................................................................... 579 6. The Effects of Globalization. ......................................................... 582 III. SELECTIVE EXCEPTIONALISM ................................................................... 584 A. The Contrast between Wholesale and Selective Exceptionalism ......... 588 B. Standards for Selective Exceptionalism .............................................. 595 1. Legal Text ..................................................................................... 596 2. Legal Structure ............................................................................. 598 3. Political Institutions ...................................................................... 598 4. Legal Tradition ............................................................................. 599 C. The Values of Dialogue and Engagement ........................................... 601 IV. CONCLUSION ........................................................................................ 602 + Professor of Law, Temple University Beasley School of Law. This article is based in part on a presentation I gave at a conference entitled “Through the Looking Glass: National Engagement with International and Foreign Law & Government,” sponsored by Monash University and held in Manly, Australia in December 2010. Portions of the article (including portions of the Introduction, Parts I (B) and II, and the Conclusion) are drawn from that earlier presentation. I would like to thank Dean Bryan Horrigan, who organized the conference, and the other participants for their helpful comments and suggestions. I would also like to thank Kelsey Lee for her research assistance. Lastly, I’d like to thank Dean JoAnne Epps and Temple University for their generous research grant support. 537 538 Catholic University Law Review [Vol. 65:537 “We know we belong to the Land, And the Land we belong to is grand!” – Lyrics from “Oklahoma!” by Oscar Hammerstein1 These are certainly interesting political times. There have been sharp shifts in voter sentiment in the last several national elections. 2 In 2000, Al Gore secured the popular vote, but George W. Bush won the electoral vote with some help from the U.S. Supreme Court.3 President Bush’s reelection in 2004 ushered in what promised to be the strongest Republican presidency since Ronald Reagan, given that the Republican Party controlled both Houses in Congress.4 However, in 2006, after military setbacks in Iraq and natural disasters at home, the party that seemed ascendant two years before lost Congress to the Democrats in an election widely viewed as a rebuke of Bush Administration policies.5 Subsequently, in 2008, the Democrats captured the White House and strengthened their congressional majorities, providing them control of both the Executive and Legislative Branches for the first time in close to a generation.6 Pundits predicted a new era of progressive lawmaking.7 Yet, just two years later, 1. OSCAR HAMMERSTEIN & RICHARD RODGERS, OKLAHOMA! 58, Act 2, Scene 4 (1943). 2. See infra notes 4–6 and accompanying text. 3. See Bush v. Gore, 531 U.S. 98, 110 (2000) (deciding the results of the 2000 Presidential election in Florida after a contentious recount, which in turn determined the national result); see also John Woolley & Gerhard Peters, Election of 2000, THE AMERICAN PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/showelection.php?year=2000 (last visited Mar. 8, 2016). 4. See Party Divisions of the House of Representatives, HISTORY, ART & ARCHIVES, UNITED STATES HOUSE OF REPRESENTATIVES, http://history.house.gov/Institution/Party- Divisions/Party-Divisions/ (last visited Mar. 8, 2016) [hereinafter Party Divisions: House of Representatives]; see also Party Division in the Senate, 1789–Present, UNITED STATES SENATE, http://www.senate.gov/history/partydiv.htm (last visited Mar. 8, 2016) [hereinafter Party Division: Senate]; John Woolley and Gerhard Peters, Election of 2004, THE AMERICAN PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/showelection.php?year=2004 (last visited Mar. 8, 2016). 5. In 2006, a midterm election, the Republican Party lost control of both houses of Congress to the Democratic Party. See Bart Mongoven, The Political Aftermath of Hurricane Katrina, STRATFOR (Aug. 29, 2007), https://www.stratfor.com/political_aftermath_hurricane_katrina; see also Party Divisions: House of Representatives, supra note 4; Party Division: Senate, supra note 4. 6. See John Woolley and Gerhard Peters, Election of 2008, THE AMERICAN PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/showelection.php?year=2008 (last visited Mar. 8, 2016) (noting that in 2008, a presidential election year, the Democratic Party’s candidate, Barack Obama, was elected President); see also Party Divisions: House of Representatives, supra note 4; see also Party Division: Senate, supra note 4. 7. Reaching for a New Deal: President Obama’s Agenda and the Dynamics of U.S. Politics, RUSSELL SAGE FOUNDATION, http://www.russellsage.org/research/reaching-for-new-deal-read- more (last visited Mar. 8, 2016) (“Pundits and politicians alike have compared Barack Obama’s 2016] Appraising American Resistance to Foreign Law 539 in 2010, the Democrats lost control of the House of Representatives.8 Although President Barack Obama was re-elected in 2012, Republicans strengthened their control over the House of Representatives and executed effective political blocking power in the Senate.9 The Republicans regained control of the Senate in 2014, making it even more difficult for the Obama Administration to fulfill new legislatives initiatives.10 The overall effect was years of federal political stalemate between the Democratic and Republican Parties.11 Evidently, the political symbol that best captures the electoral mood of the public in the United States is neither a red elephant nor a blue donkey (the symbols of the Republican and Democratic Parties, respectively), but rather a red-and-blue yo-yo. Amid these national political tremors, one of the more obscure, yet potentially legally significant, developments of the 2010 midterm election occurred in Oklahoma. 12 In a statewide referendum, voters approved a change to the Oklahoma state constitution, adopting restrictions on state judges which have subsequently been enacted in other states and could play a significant role for U.S. law in the future.13 Dubbed the “Save Our State” (“SOS”) Amendment,
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