By JAMES K. FITZPATRICK
Marches sponsored by a group called ACT for America were held June 10 in several American cities to make the point that Sharia Law is incompatible with American democracy. There were some counterdemonstrations, but for the most part the demonstrations were peaceful, just a little pushing and shoving.
I didn’t see any placards at the marches proclaiming “Rebus Sic Stantibus,” but they would have been apropos. Rebus sic stantibus (Latin for “things thus standing”) is a long accepted understanding in international law. It is the legal doctrine that holds that treaties between nations can be held invalid if circumstances change dramatically in the years after they are signed.
It is common sense. We would not have expected, for example, the countries of Western Europe to feel obligated to abide by treaties made with the government of Kaiser Wilhelm II after Hitler came to power, or with the Bolshevik government in the newly established Soviet Union.
Rebus sic stantibus is a principle of international law, not U.S. constitutional law. Amendments to the Constitution are the way we deal with new insights into how our rights as citizens should be protected by law. Still, one cannot help but ponder whether some new understanding of our basic constitutional rights is necessary, in light of the violence being perpetrated by Muslims around the world. Specifically, whether the pockets of Islamic militants in the United States should be guaranteed freedoms of speech and press and the Fourth Amendment right not to be subjected to “unreasonable searches and seizures.”
The demonstrators against Sharia Law have a point: The Founding Fathers did not write a Constitution for a country with a sizable Muslim population with a commitment to Sharia Law. I have seen the articles floating around the Internet quoting Thomas Jefferson to the effect that the human rights outlined in the Declaration of Independence are universal, applying to Muslims as well as the Christian population of the original 13 states.
OK. But Jefferson was talking about a tiny segment of Muslims living in the late 18th-century United States, a few merchants and their families here and there. He wrote the Declaration (and the Framers wrote the Constitution) for an overwhelmingly Christian people. He trusted Christians — specifically, their respect for human rights and the worth of the individual — with membership in a free society. The non-Christians were so small in number in the country at that time as to not warrant serious deliberation.
Put otherwise, we can take it for granted that Jefferson took it for granted that the non-Christians in the newly independent United States would have no power to shape — or endanger — the country’s political life. The growth in the number of Muslims in Europe and the United States has changed that scenario.
Andrew McCarthy in the online edition of National Review on June 6 says it well: “If you are an Islamist in the West, you are, by definition, an extremist. An Islamist is a Muslim who believes Islam requires the imposition of sharia, Islam’s ancient, totalitarian societal system and legal code.”
The question, then, is whether an advocate for Sharia Law is entitled to the Constitution’s guarantee of the freedom of expression to promote his beliefs.
Writes McCarthy, “Obviously, there are gradations of extremism. Some Islamists are violent jihadists. Some support violent jihadists but eschew violence themselves. Some may reject violence (or at least say they do) and claim to seek sharia imposition only by peaceful persuasion. Some may lie about their intentions, pretending to oppose both violence and the imposition of sharia, or pretending that sharia is really moderate, peaceful, and perfectly compatible with Western notions of freedom, democracy, and human rights. But they all want sharia.”
Which means Islamists do not seek to assimilate into our system of government; they seek to replace it. McCarthy quotes Turkey’s dictator Recep Tayyip Erdogan, who describes the Western call for Muslim migrants to assimilate in their new European societies as “a crime against humanity.”
McCarthy concludes: “Wherever there is Islam, there will inevitably be Islamists; and when those Islamists reach a critical mass of population (which can be considerably less than 50 percent), there will inevitably be sharia activism.”
What is our recourse? We can’t take away the freedom of speech and press and the right to assembly of Muslim groups, or subject them to “unreasonable” surveillance; that would violate their constitutional rights. Right? Maybe not.
Willmoore Kendall points out what he calls the “unspoken assumptions” of the Founding Fathers in an essay on the work of the mid-20th century political philosopher Richard Weaver. The essay can be found in an anthology of Kendall’s work entitled Willmoore Kendall: Contra Mundum (Arlington House, 1971). Kendall insists that the Founders understood that the Constitution’s stated goal of “promoting the common good” and “securing liberty” was hinged upon “the kind of ‘people’ or ‘society’ we are going to be.”
Kendall argues the Founders knew that our Constitution cannot, in and of itself, cannot “prevent tyranny, since the machinery of government is open to capture by a popular majority.” This means our system of government relies upon the premise that “we, the people” shall “be virtuous, dedicated in our hearts to justice, to the common good, to liberty, and to the prevention (the renunciation on ‘our’ own part) of tyrannical measures.”
I don’t think it is putting words in the late Kendall’s mouth to infer that he would argue our constitutional freedoms will not endure if the number of Islamists within our borders reaches critical mass. What is “critical mass” in this context? Certainly a numerical majority. But it could be far less than that, as we are witnessing in Europe, where parts of London and Paris populated by Muslims have become “no-go” zones where the police no longer enforce British and French law.
Is it alarmist to raise the possibility that the number of Muslims within our borders will reach the levels that obtain in modern Europe? No doubt, moderate men and women in England and France said that not so long ago.
In simple terms, should an Islamist minority hostile to the liberties enshrined in our Constitution be granted the right to grow in power and influence, for the purpose of supplanting the Constitution with Sharia Law?
I am confident that most Americans do not accept that an openness to self-destruction is demanded of us by the Constitution. But how do we restate the understanding of freedom of religion found in the Constitution to take into account the new threat posed by Islamists in our midst? We can’t find the answer by searching through Jefferson’s writings or copies of the Federalist. It was a problem they could not possibly have foreseen in the late 18th century in North America. But it is staring us in the face now.
We are on our own in coming up with the words necessary to establish in law the principle that minorities who have no intention of maintaining our constitutional rights if they come to power — such as Islamists — have no right to enjoy our constitutional rights while they are in the minority.
A Muslim leader told reporters that the June 10 marches against Islamists were rooted in ignorance, since “Muslims living as a minority are willing to abide by the prevailing legal systems.” Huh? “As a minority?” Does the man realize he is making the point of those protesting Sharia Law on June 10: What happens when they are no longer a minority?
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