I have a problem with House Joint Resolution 1004. Representative Phil Jensen (R-33/Rapid City), Senator Larry Rhoden (R-29/Union Center), and many of my favorite conservatives (Haggar, Hickey, Hubbel, Munsterman, Stace Nelson, even my gal Stricherz) want to submit to us voters a constitutional amendment to prohibit judges from applying international law, foreign laws, and "certain foreign religious or moral codes" in their decisions.
Now I'm pretty clear on what constitutes foreign and international law, and I certainly don't mind if the judge decides, say, a libel case against me based solely on American law rather than British or Saudi statutes that might be tougher on free speech. I think the constitution already covers that.
But what, pray tell, constitutes a "foreign religious code"? Is that a religion practiced in foreign lands? A religion that originated in a foreign place? Moses, Jesus, Mohammed, Luther... all foreigners. Uh oh.
What then would constitute a "domestic religious code," whose application I take it HJR 1004's progenitors would find tolerable in court? Are judges to go easy on folks smoking peyote, out of respect for Native American spirituality? Shall judges apply Mormonism, straight from those golden plates in New York, and acquit bigamists?
Back on the legal side, I learn from a friend in law school that American jurisprudence is interwoven with "foreign" law. Cases of "first impression," novel situations that lack guiding statute or precedent, require responsible jurists to read up on the legal thinking of jurists and scholars elsewhere. Justice and logic are not provincial. We built much of American law on the precedents of English law. Under HJR 1004, are we to chop off common law pre-1776 and reconstitute American jurisprudence from scratch?
HJR 1004 isn't "just a resolution." It would put to a public vote a thoughtlessly worded amendment to our constitution. Enacted, HJR 1004 would improperly narrow our judges' reading lists. No Bible, no Torah, little common law...