Elena Kagan's Work to Make Constitutions More Shariah-Compliant

Previously on Big Peace we exposed Elena Kagan’s active support for Shariah Law. During her years as Dean of Harvard Law School, from 2003-2009, she ran and greatly expanded the Islamic Legal Studies Program. In publications and conferences, her program tolerated – indeed promoted – the Saudi-influenced introduction of Shariah law into national Constitutions.

Kagan, Feldman, and the Rise of the Islamic State

To expand Harvard’s capacity to sell Shariah law, Kagan hired Noah Feldman in 2007, and in 2008 Feldman published his valentine to Shariah: “The Fall and Rise of the Islamic State,” which argues for democratically elected “Islamist” (aka Muslim Brotherhood) parties to take control of Muslim states in order to govern under Shariah law. Kagan rewarded Feldman’s Shariah advocacy by giving him the endowed Bemis Chair in International Law on September 16, 2008. His speech accepting the Bemis chair advocated an “experimental Constitution” that “embraces international institutions.” The New Republic’s Leon Wieseltier devastating critique of Feldman’s shilling for Shariah included this insight:

In his discussion of Islamism, Feldman, who knows a lot more about Islam than I do, no longer rises to uphold the liberty of conscience. Instead he explains warmly that “to the Islamist politicians who advocate it or for the public that supports it, Shariah … is expected to function as something like a modern constitution.” He compares Islamic law to nothing less than “the American constitutional balance of powers.” Philadelphia! …. Feldman is weirdly at peace with the increasing popular support that Islamism enjoys in Egypt, Pakistan, and Jordan …. His offer of a shinier sharia is just another barter of rights for authenticity. This is not gradualism, it is pessimism. …. Feldman is shilling for a soft theocracy–for other people, naturally. This is, among other things, hypocritical.”

Kagan and Shariah Amendments to Constitutions

Two months after giving Feldman his Bemis chair, from November 12-14, 2008, Kagan spoke at and presided over a conference titled The Constitutional Judiciary in the Muslim World: Its Influence on the Interpretation of Constitutional and Legislative Texts 1970 to 2008 . To a large extent, the “Constitutional Judiciary” discussed in this conference was in fact the Shariah Judiciary, which was (and is, thanks in part to Feldman) being written into national constitutions in Muslim countries as a guiding principle. The Conference program is here including abstracts, with a summary report here.

Like Feldman’s book, this Conference was upbeat on the prospects of introducing Shariah law into Constitutions. Feldman was said to have been the advisor in Iraq who insisted on putting a clause in the Iraqi constitution requiring legislation comply with Shariah law. In the main, the conference participants appear to have treated the introduction of Shariah amendments into national constitutions as progress – a good thing. The Rise of the Islamic State…

That theme of Kagan’s conference was captured by Baber Johansen, acting Director of the Islamic Legal Studies Program, in his opening presentation on “The introduction of the ‘principles of the Islamic Shari’a’ as a source of the national legislation in the constitutions of major Muslim countries (1970-2008).” Johansen’s abstract states:

“The introduction of constitutional amendments in the 1970s and 1980 that made “the principles of the Islamic Shari’a” a major or even the major source of national legislation has, on the one hand, given a new Islamic dimension to constitutional law, it has, on the other, raised the question of the relation between this amendment and the other articles of the constitution.

Is the Islamizing amendment an article above or in the constitution? Do all other articles of the constitution have to be interpreted in its light or is the constitution one body in which the new amendment has to be interpreted in a way that guarantees the rights and freedoms protected by the constitution? In the last instance the question is how, if the Islamizing amendment is above the rest of the constitution, the constitution can guarantee its [ie the amendment’s] status as being above the positive law and the constitution.”

No mention of the Shariah laws against civil liberties, the lack of rights for women and non-muslims and apostates and gays, the requirement for violent jihad and so on. Just a technical discussion of the mechanics of making Constitutions comply with Shariah law.

After Johansen’s presentation, Kagan spoke – but no record exists of what she said. She is listed on the program, and a photo of her at the conference was published in the June 2009 Islamic Legal Studies Program newsletter.

That same newsletter, on the last page (“Objectives and Principles”) states that Kagan’s Islamic Legal Studies Program seeks “to promote a deep appreciation of Islamic law as one of the world’s major legal systems.”

And that’s the problem. We know that Elena Kagan has a “deep appreciation” of Islamic law and international law. Americans are increasingly skeptical that she has a similarly deep appreciation for the US Constitution.

According to Gallup polls, 44% of Americans support her nomination, 34% oppose her, and 22% don’t know. The only other nominees whose public support was less than 50% at this time were never confirmed: Harriet Miers and Robert Bork. Bork had 1% more of the public opposing him than Kagan; Miers had 2% less of the public supporting her than Kagan. It’s that close.

Americans can still raise their voices on this, if they’ll raise them loud. The Senate Judiciary Committee will vote on Kagan’s nomination this week, with the full Senate voting later this summer.