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October 13, 2007
Be It Resolved . . .
In prior postings (here and here), I have objected to Senate and House resolutions that condemned political expression by MoveOn.org and Rush Limbaugh. I did not claim that Congress lacks the authority to issue such resolutions. Rather, my claim was that such pronouncements skew the marketplace in political ideas and may chill expression by some with strongly held political viewpoints -- perhaps especially those who have business before Congress.
The issue of congressional resolutions has surfaced once again, although this time in a very different context. On Wednesday, the House Foreign Affairs Committee approved H.Res. 106 -- the "Affirmation of the United States Record on the Armenian Genocide Resolution." The resolution, which includes findings concerning the Ottoman Empire's execution and displacement of Armenians from 1915-23, "call[s] upon the President to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing, and genocide documented in the United States record relating to the Armenian Genocide, and for other purposes." House Speaker Nancy Pelosi has vowed to bring the measure to the floor for a vote. President Bush, who has made annual statements condeming the atrocities against Armenians, lobbied to block the resolution in committee. He has expressed disappointment that it was voted out of committee, and has vowed to help defeat its passage. The President's interest in the resolution is obvious: Turkey is a valuable ally in the Iraq War. The country serves as a critical staging ground for the shipment of supplies into Iraq. Turkish officials, particularly legislators, have reacted strongly to the resolution. They have threatened to cease providing logistical support to the United States, have stepped up military operations on the Iraq border, and have recalled their ambassador to Washington.
From the earliest days of the republic, congressional resolutions (joint, concurrent, and simple) have been issued to express the opinion or will of one or both chambers of Congress. Most "symbolically expressive" resolutions are not at all controversial. For example, resolutions have been proposed or enacted which celebrate children as "the hopes and dreams of the people of the United States," recognize Ramadan and express "the deepest respect to Muslims in the United States and throughout the world," acknowledge military gallantry, and designate March as "Women's History Month." Such "feel good" expression does no harm, and indeed can inform the public of important national policies and priorities.
As the fallout from the Armenian genocide resolution demonstrates, the calculus may be substantially different, and the stakes much higher, when Congress expresses itself on matters of foreign affairs.
The Constitution divides the power to conduct foreign relations between the Executive and Legislative branches. Part of that power resides, of course, in the issuance of formal statements by the branches. History shows that congressional resolutions, in particular, can be important policy-initiating and policy-shaping statements. Previous congressional resolutions have called on the President of Pakistan to hold free and fair elections and on the Chinese government to resolve political crises without violence. Congress also supports presidential foreign policy initiatives through resolutions. For example, Congress expressed gratitude to the United Kingdom for allowing U.S. bombers stationed there to participate in the April, 1986 raid of terrorist bases in Libya. This dialogue -- between Congress and other nations and between the branches of government -- surely ought to be encouraged.
But Congress is no ordinary speaker. As no legal restraints apply to its many "symbolic" resolutions, it must determine for itself when and on what matters of foreign affairs it wishes to speak. Congress, in other words, must necessarily self-censor. On the world stage, as in the domestic market for political expression, Congress must be acutely aware of the ramifications of its expression -- for diplomacy and, in the case of the genocide resolution, even military operations. The President and Congress will not always agree on foreign affairs policies or agendas. Setting aside Congress's undoubted ability to speak to matters of substantive foreign policy and war, what if any norms or considerations ought to guide Congress when considering whether to issue symbolic resolutions on controversial matters like Japanese "comfort women" or Armenian genocide? Should it generally hold its collective tongue where the controversy does not concern any direct American interest? When it is particularly important that the United States speak with a "single voice"? When its expression may interfere with ongoing military operations, endanger lives, or result in the breaking of diplomatic ties? Or should Congress, like other speakers, rely upon the marketplace -- including presidential resolutions --to counter any purported ill effects from its expression, and speak boldly even in the face of likely hostile audience reactions?
I confess to being far more certain that Congress ought to limit or abandon resolution-making in the domestic political sphere than I am of any plausible duty of self-censorhsip in the foreign arena, where Congress of course has a recognized constitutional role to play. I welcome your thoughts and comments.
Posted by Timothy Zick at October 13, 2007 12:08 PM
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Comments
For the record, Republicans being Republicans, the resolution to recognize Ramadan and express deep respect for Muslims led 41 of them to vote "present" instead of yes.
http://clerk.house.gov/evs/2007/roll928.xml
Posted by: Kevin Jon Heller at October 13, 2007 05:10 PM
Muslims Against Sharia commend House Democrats and Speaker Pelosi for pressing ahead with an Armenian genocide bill. Republican opposition to the bill is pure manifestation of moral relativism.
Muslims Against Sharia condemn Turkish government for refusing to acknowledge Armenian genocide and recalling its US ambassador in response to the bill.
Posted by: Muslims Against Sharia at October 15, 2007 12:38 AM
A Muslim "against Sharia" is an oxymoron. A Muslim against a particular theological or legal interpretation of Sharia is not. It does makes sense for a Muslim to argue that this or that rule or law of fiqh is not in true conformity with the Sharia. Why?
Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’
This is an excerpt from my Islam glossary guide entry on Sharī‘ah that is distributed to my students.
Posted by: Patrick S. O'Donnell at October 15, 2007 08:58 AM
...and nearly two years, Democrats being Democrats, the resolution to recognize "...the sense of the House of Representatives that the symbols and traditions of Christmas should be protected for those who celebrate Christmas."" led 22 of them to vote "NAY" and 5 of them to vote "present" instead of yes.
http://clerk.house.gov/evs/2005/roll637.xml
I acknowledge that these kinds of resolutions are silly but...would the House have the nerve to allow a similar one in support of Judaism?
Posted by: Maryland Conservatarian at October 15, 2007 05:43 PM
