Affirming the Sovereignty of Arkansas and the United States: SB 97

Curtis Coleman, Contributing Author: On Wednesday of this week, eight Arkansas state senators will have a unique opportunity to demonstrate their fidelity to their oath of office by affirming the supremacies of the Arkansas and U. S. Constitutions.

Arkansas Senate Bill 97, “an act to protect rights and privileges granted under The United States Constitution and The Arkansas Constitution,” will be considered by the Senate Judiciary Committee under a special order of business at 11:00 a.m. in Room 171 of the State Capitol in Little Rock. (The Committee will begin consideration of its regular agenda starting at 10:00 a.m.) S.B. 97 is sponsored by Senator Cecile Bledsoe (R-Rogers) and 30 other state senators and representatives (listed at the end of this article). Contact information for the members of the Senate Committee on Judiciary is listed at the end of this article.

The proposed legislation includes the prescription that “Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code, or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the United States Constitution and the Arkansas Constitution.”

While it is extraordinarily difficult to imagine why any elected representative of the people of Arkansas might oppose this profoundly simple and equally profound affirmation of the Arkansas and U.S. Constitutions, the bill is expected to face opposition from some members of the Committee.

Opponents are expected to propose (a) that the bill has a hidden agenda and is a gimmick to insinuate that some Arkansas courts or groups are currently not following the Arkansas Constitution, (b) the bill targets specific groups or religions and (c) Arkansas companies which are or plan to do business in other countries would be adversely affected. All of these concerns are erroneous and unfounded.

As the co-founder and former President/CEO of an Arkansas company doing business on four continents, I can affirm that S.B. 97 will have either no affect or will strengthen the position of Arkansas-based companies doing business with companies and/or customers in other countries. Nor does the proposed legislation “target” any specific group or religion. If this important legislation is adopted, no Arkansans will be limited in the practice of their religion as long as their practices do not conflict with the Arkansas Constitution or the United States Constitution. The sponsors of the bill insist that S.B. 97 is simply but importantly a pre-emptive affirmation of the supremacy of the Arkansas and U. S. Constitutions.

The Supremacy of the Constitution Under Increasing Attack

Harold Koh

Consider Harold Koh, the Department of State’s top lawyer. Koh is “the face of American international law around the world,” said Steven Gross, legal expert and fellow at the Heritage Foundation.

A former Yale Law School Dean, Koh represents a wide variety of issues wildly out-of-step with the values and beliefs of Arkansans. He is an outspoken advocate for the belief that American justices should take international law into account when interpreting the United States Constitution. Under this philosophy, laws made by international organizations – even if they are rejected by Congress – can supersede American sovereignty.

For instance, in a 2003 essay titled “A World Drowning In Guns
,” Koh effectively sweeps aside the Second Amendment’s guarantee of the right to bear arms by arguing for a “global regulatory” scheme to outlaw firearms by using international law to trump American gun rights.

Without question, the supremacy and sovereignty of the U.S. Constitution – and, by extension, the Arkansas Constitution – are under increasing attack. While the sponsors of Arkansas S.B. 97 correctly maintain the bill is needed because foreign laws are being used already in other states, primarily in domestic arbitration, the scope and extent of the intrusion of international and foreign laws on America’s judicial system has raised broad and significant concern among experienced statesmen and tenured jurists alike.

In its January 2010 “Issue Statement on International Law and U. S. Sovereignty,” the Congressional Research Service observed, “Increasing accessibility of courts around the world to alien litigants may have given rise to international “forum shopping” that subjects U.S. citizens to foreign judicial systems that are not obligated to recognize rights they would enjoy under the U.S. Constitution. Conversely, U.S. courts are ever more frequently called upon to resolve disputes between U.S. citizens and foreign subjects or governments, or even between foreign parties without significant ties to the United States.”

In a speech entitled “The Coming War on Sovereignty” given at Stanford University in April 2009, former U.S. Ambassador to the United Nations John Bolton sharply criticized the idea of allowing global governance to usurp the United States’ interests.

According to The Stanford Review, Bolton defined global governance as, “[an] oblique way of saying, you have too much control over your own government. You really need to give a little bit of that up to other institutions or other countries. [W]e have global problems and we need global solutions.” He argued passionately against allowing organizations like the UN or NATO to control US foreign policy.

Bolton’s primary concern was the United States’ ability to use military force. “The Constitution trumps international law. If you look for a source of authority, you have to follow our own Constitutional procedures on the use of force,” Bolton argued.

The ambassador quoted former UN Secretary General Kofi Annan, “[I] look forward to the day when the UN Security Council is the sole source of legitimacy for the use of force.”

In November 2003, then Under Secretary for Global Affairs Paula Dobriansky said in a speech for The Federalist Society, “Our sovereignty is the basis of our freedom, and it is commendable that organizations like the Federalist Society stand ready to defend this pillar of our republic. As George Washington wrote to Alexander Hamilton, ‘If we are told by a foreign power what we shall do and what we shall not do, we have independence yet to seek and have contended hitherto for very little.’

“The United States is engaged in the world now more than ever before in our history, and we must be mindful that our sovereignty rests always with the American people and never with a foreign government or international organization.”

An International Power Play to Move Outside of Our Legal Systems

John Bolton

In his book, How Barack Obama is Endangering our National Sovereignty, former Ambassador and lawyer Bolton writes, “To President Obama, the concept of international law is palpable, as his September 2009 speech to the U.N. Security Council emphasized: ‘[W]e must demonstrate that international law is not an empty promise, and that treaties will be enforced.’ Many in his administration are doing their utmost to subvert America’s well-deserved reputation as an adherent of the rule of law by subordinating it to the dangerous concept that international law, as defined by its high priests, overrides our domestic law, including in the judiciary.”

“Because democratic debates in constitutional systems like ours are so unsatisfying and often so unproductive for America’s statists, they have, in essence, launched an international power play to move outside of our legal systems. They find much greater prospects for success in international forums like the United Nations than in the U.S. Congress. Hence, the role and limits of international law, determining what is legally binding for our international conduct and domestic policy, will be a critical area of debate in the coming years.” Bolton maintains.

On Wednesday, February 2nd, eight Arkansas lawmakers have a profound opportunity to critically affirm the sovereignty of Arkansas and the United States and their respective constitutions. They are:

Members of the Arkansas Senate Committee on Judiciary
(Click on any bolded name to begin an email with the subject, “Please Support S.B. 97.” Senators Ruth Whitaker and Jason Rapert are co-sponsors of the bill.)

Senator Jim Luker, Chair, Wynne, 870-238-8588
Senator Ruth Whitaker, Vice Chair (co-sponsor of S.B. 97)
Senator Sue Madison, Fayetteville, 479-442-2997
Senator Robert Thompson, Paragould, 870-239-9581
Senator David Johnson, Little Rock, 501-682-6107
Senator Jason Rapert (co-sponsor of S.B. 97)
Senator Stephanie Flowers, Texarkana, 870-772-0300
Senator Steve Harrelson, Texarkana, 870-772-0300

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Curtis Coleman is the President of The Curtis Coleman Institute for Constitutional Policy and contributing author to the& ARRA News Service.

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