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Establishment Clause-Trophobia: Building a Framework for Escaping the Confines of Domestic Church-State Jurisprudence

55 Pages Posted: 12 Sep 2010 Last revised: 15 Oct 2010

Jesse R. Merriam

Johns Hopkins University

Date Written: Spring 2010

Abstract

Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont v. Woods, a Second Circuit U.S. Court of Appeals decision holding that the Establishment Clause always applies abroad but less strictly than it does domestically. Although several scholars have recently explored whether and to what extent the Constitution applies abroad, the specific issue of whether and how the Establishment Clause applies abroad has risen barely above a whisper in scholarly discourse. Indeed, although some prominent church-state scholars have commented on the Lamont decision, none has thoroughly analyzed it, leaving a law student Note as the most significant work to engage the Lamont reasoning. The issue is now screaming for scholarly and judicial treatment, as evidenced by a July 17, 2009 audit by the USAID inspector general’s office questioning whether some of USAID’s programs violate the Establishment Clause. This audit, as well as recent reports on this issue by the Chicago Council on Global Affairs and the Center for Strategic and International Studies, indicate the need for legal clarity on this important policy question. This Article seeks to provide that clarity by comprehensively analyzing whether and to what extent the Establishment Clause applies abroad.

Keywords: church-state, Insular Cases, Boumediene v. Bush

JEL Classification: H11, H40, H77, K19

Suggested Citation

Merriam, Jesse R., Establishment Clause-Trophobia: Building a Framework for Escaping the Confines of Domestic Church-State Jurisprudence (Spring 2010). Columbia Human Rights Law Review, Vol. 41, No. 699, 2010; GWU Legal Studies Research Paper No. 511; GWU Law School Public Law Research Paper No. 511. Available at SSRN: https://ssrn.com/abstract=1675112

Jesse R. Merriam (Contact Author)

Johns Hopkins University ( email )

Baltimore, MD 20036-1984
United States

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