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Does the Establishment Clause in the US Constitution limit foreign policy?

Dr. Michael Kessler, Assistant Director of the Berkley Center for Religion, Peace and World Affairs

Dr. Michael Kessler, Assistant Director of the Berkley Center for Religion, Peace and World Affairs

Over at Georgetown/On Faith in the Washington Post, my colleague Michael Kessler is beginning a series of articles on that question. He explains:

Does the Establishment Clause prevent the President from using or aiding religion as part of foreign policy? Absolutely not, so long as it is not action upon U.S. citizens.

You may not like this result, and you may think that the President should be constrained from rendering aid to foreign religious activities. Please note: I am not making a claim at this point about whether or not the President and the U.S. government ought to be able to give aid or conduct activities in a foreign context that may advance or inhibit religious activity.

My point is more narrow: if you want to prevent the President from advancing or inhibiting religion in foreign affairs, you will need to find other ways than the Establishment Clause to constrain the President.

The authors of a major report issued this week by the Chicago Council on Global Affairs state the matter bluntly: “The conduct of U.S. foreign policy is complicated by questions surrounding the relevance and applicability of the Establishment Clause of the First Amendment to the U.S. Constitution.” This is a complicated issue, precisely what I am addressing in a forthcoming, lengthy article. So it is a ripe moment to address the report over the coming weeks and to introduce what I hope are some clarifications about the way to address this issue.

This confusion about whether the Establishment Clause applies to the foreign actions of the United States arises from doctrinal uncertainty about the scope of the Clause:

It is unclear…whether and how…domestic nonestablishment constraints apply to U.S. foreign policy. There are reasonable arguments that the clause imposes significant limits on the conduct of foreign policy, and there are equally reasonable arguments that it imposes only relatively narrow limits that have little or no practical effect on the policies recommended in this report.

The task force authors offer their strongest argument for why the Establishment Clause limits the President’s conduct of foreign policy:

There is a general assumption that the Constitution and Bill of Rights (including, presumably, the Establishment Clause) apply to most U.S. government action abroad. Moreover, the Supreme Court treats the Establishment Clause, unlike other provisions of the Bill of Rights, as a structural limitation on government that is not subject to a balancing of interests. This conception of the clause, in turn, suggests that it should apply regardless of whether the government acts domestically or overseas.

A bit thin of an argument, you say? Indeed. “General assumptions” not grounded in principled legal doctrine won’t take us very far when the result may be serious misunderstandings of how Constitutional clauses should and do operate.

To help clarify this thorny mess, I will sort through these issues in detail over the coming weeks, the most important of which are: 1) the theoretical and historical contours of the Establishment clause (this week), as well as modern Court interpretation (2nd week); 2) whether the Establishment Clause could be used in a lawsuit to attack the President’s conduct of foreign affairs (3rd week); 3) whether Presidential power in foreign affairs more generally can be constrained about the choice of means to achieve a foreign policy goal (4th week)?

I will conclude (5th week) with some application of these ideas to an actual foreign policy program the United States conducted after 9/11 and at the start of the global war on terror, in which significant funding was provided to advance the cause of democracy promotion and to assist the infrastructure capacity of liberal and moderate Islamic leaders.

This look fascinating! Go read the rest of today’s column and check out coming articles.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.