In a recent post Daniel Luban describes a trend among some conservatives against the contrived anti-Sharia hysteria. A recent back-and-forth on the pages of National Review Online was sparked when Matthew Schmitz, editor of the conservative religious magazine First Things, wrote a sane and thoughtful post on anti-Sharia legislation which sent Andy Bostom, David French, and Andrew McCarthy into action.
But most interesting is the response of David Yerushalmi, the author of the model anti-Sharia legislation which is worming its way through many state courts. He does not seem to understand that if the constituion protects something, one does not need a law to protect that protection. Speaking of relationship of the so-called American Laws for American Courts legislation to constitutional rights, he says:
These are baseline constitutional protections ALAC seeks to protect.
Does he not see how ridiculous that statement is? He unwittingly affirms one of Schmitz’s fundamental points:
At best, they’re a legislative tautology with no immediate effect, and so no immediate harms; they declare illegal what is already illegal and unconstitutional what is already unconstitutional.
Any close observer of Yerushalmi and his colleagues knows what they are up to. I looked closely at the legislation Yerushalmi authored for consideration by the Tennessee legislature. Its plain sense would have criminalized nearly every practicing Muslim just for observing mainstream ritual practices such as fasting. That is, Yerushalmi authored a law whose wording could have enabled the prosecution of any Muslim who fell short of renouncing Islam completely.
Moreover Yerushalmi has already told us what the legislation is for, and why it is better for the legislation not to pass rather than pass easily:
“If this thing passed in every state without any friction, it would have not served its purpose,” he said in one of several extensive interviews. “The purpose was heuristic — to get people asking this question, ‘What is Shariah?’”
So we now have two statements from Yerushalmi telling us that his legislation serves no real legal purpose. But let’s pretend for a moment that Yerushalmi is serious. He says:
In every state you can find appellate court decisions making clear that the state legislature must define the parameters of what the state public policy is. Courts should only tepidly step into this arena. ALAC takes up this judicial invitation to have the legislature make clear that any foreign law, religious or secular, that violates a parties constitutional liberties is void as a matter of public policy.
Do state legislatures really need Andrew McCarthy and David Yerushalmi to help them define public policy as the avoidance of anything that “violates a parties [sic] constitutional liberties”? These benighted state legislators, I’m sure, sit at their desks wondering whether their public policy should violate basic constitutional rights. When Yerushalmi arrives to tell them they should not, they must feel incredibly relieved and edified.