Robert Jackson on Sharia v. the Constitution

by Andrew C. McCarthy

I’ve been working my way through my friend Steve Coughlin’s invaluable new book, Catastrophic Failure: Blindfolding America in the Face of Jihad (which I discussed a bit in this recent column on the San Bernardino terrorist attack).

In light of the sharia encroachment campaign to bend the First Amendment to the repressive blasphemy standards of Islamic law (the subject of my columns today and over the weekend), it is very much worth noting Steve’s unearthing of a 1955 statement by the legendary Robert Jackson – the former Supreme Court justice and Nuremberg prosecutor, who was United States attorney general under FDR:

In any broad sense, Islamic law offers the American lawyer a study in dramatic contrasts. Even casual acquaintance and superficial knowledge – all that most of us at bench or bar will be able to acquire – reveal that its striking features relative to our law are not likenesses but inconsistencies, not similarities but contrarieties. In its source, its scope and its sanctions, the law of the Middle East is the antithesis of Western law.

The passage is part of a Forward Justice Jackson wrote to a book called Law in the Middle East. He thought it was a subject we needed to be informed about.

Today, we don’t want to know about sharia – not the government, the commentariat, or the popular culture. As noted here time and again, foreign policy of the United States has for a generation proceeded on the absurd assumption that sharia and Western liberalism are perfectly, seamlessly compatible.

Indeed, that is the operating assumption of the new constitutions for Afghanistan and Iraq that the United States government helped write – constitutions that impossibly purport to protect civil rights while simultaneously enshrining sharia as a principal source of law. In Afghanistan, the government has, for example, convicted former Muslims for apostasy under the new Constitution – the apostates escaped the death penalty only by being whisked out of the country. In Iraq, since the American invasion and the new constitution it ushered in, the Christian population has decreased by more than 70 percent (from about 1 million down to around 250,000 to 300,000, according to the U.S. Commission on International Religious Freedom, 2015 Report, pp. 95-96). While the rise of ISIS has exacerbated religious persecution in Iraq, it was rampant even before the terror network came along. (See id. at 97: “The Iraqi government, under both former Prime Minister al-Maliki and current Prime Minister Haider al-Abadi, also has committed human rights abuses, including torture and extrajudicial killings of Sunni prisoners and civilians.”)

Tellingly, Islamic supremacists fully comprehend the fundamental incompatibility between Islamic and Western standards. In Cairo in 1990, the 57-government Organization of Islamic Cooperation (then known as the Organization of the Islamic Conference) issued its “Declaration on Human Rights in Islam.” This sharia supremacist proclamation was issued because the “Universal” Declaration of Human Rights presumptuously issued by the United Nations General Assembly in 1948 was not consistent with Islamic norms.

Steve observes that the deeply flawed assumption of compatibility between sharia and the Constitution that undergirds our policy flows from “an absence of functional knowledge of Islamic law in America’s halls of power.” Why don’t officials inform themselves? Because, he opines, “our national security leaders have taken active measures to suppress both analysis and discussion of the topic, under threat of harsh sanctions.”

There was a time, not so long ago, when America’s national security leaders and legal titans grasped the need to be informed about Islamic law as it actually exists, not as they wished it were. Until we recover that understanding, we will be able neither to protect ourselves nor to know how and when to intervene in the world’s most volatile region.

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