Establishment Clause Doesn't Limit Foreign Policy

By: Michael Kessler

February 26, 2010

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.

You can see, by this tease of a real program, that this is not merely an abstract, wonky question. Whether you believe that the government is constrained from advancing or inhibiting religion in the foreign context will determine whether or not you think that the government can engage in cultural, political, and informational activities which attempt to prevent the spread of radical modes of political and religious activity among our enemies, and friends, abroad.

So let us turn to the history and theory of the Establishment Clause, a history that I argue provides fairly strong evidence that its overwhelming purpose was to prevent the creation of a nationally-sanctioned religion that stifled the freedom of state sovereignty and the liberties of citizens to pursue matters of conscience unfettered by governmental interference.

The Establishment Clause was created in response to a long-suffering experience of colonists being subject to religious controls, both in their homelands and in the new colonies. Michael McConnell helpfully summarizes a definition of establishment as it operated in the colonies:

An establishment is the promotion and inculcation of a common set of beliefs through governmental authority...During the period between initial settlement and ultimate disestablishment, American religious establishments moved from being narrow, coercive, and intolerant to being broad, relatively non-coercive, and tolerant. Although the laws constituting the establishment were ad hoc and unsystematic, they can be summarized in six categories: (1) control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.

While many colonists were subject to official churches and legal enforcement of doctrinal purity (e.g. think Massachusetts and the Puritans!), a strong tradition of tolerance for religious diversity--across sects of Christianity and even across religions--developed among theorists and eventually took hold as policy.

Consider Elisha Williams as representative of this strand of an argument for toleration. In his 1742 Essential Rights and Liberties of Protestants, Williams argued that:

Every man has an equal right to follow the dictates of his own conscience in the affairs of religion. Every one is under an indispensable obligation to search the scripture for himself (which contains the whole of it) and to make the best use of it he can for his own information in the will of God, the nature and duties of Christianity. And as every Christian is so bound; so he has an unalienable right to judge of the sense and meaning of it, and to follow his judgment wherever it leads him; even an equal right with any rulers be they civil or ecclesiastical.

From this follows the claim--a strong Lutheran tenet--that "the civil authority hath no power to make or ordain articles of faith, creeds, forms of worship or church government...if our consciences are under the direction of any humane authority as to religious matters; they cease to be under the direction of Christ."

Thomas Jefferson echoes this concern in his Notes on the State of Virginia (1784): "our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg."

James Madison's argument in the Memorial and Remonstrance against Religious Assessments (1785) builds upon this basic insight: "The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men."

As such, the legal community can have no power over the affairs of conscience or religion. Protections must be enacted between the individual believer and religious community on the one hand, and the government with their blunt instruments of the sword, laws, and taxes on the other hand (instruments that can never sway the conscience in the first place!)

Madison's proposal for a Bill of Rights at the First Congress sheds the most light on the individual liberty thrust of the Establishment Clause. He offered a series of amendments to protect specific rights, the third of which read that the: "civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." That text came to be modified into the final language of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Why no official establishment? In order to preserve the liberty of conscience which is a fundamental right to engage in the free, unfettered exercise of a citizen's own religion.

It must be noted, however, that at one level, the Establishment Clause was merely a federalist provision; that is, it was a constraint on the power of the Federal government to assure them the new national government was not going to overwhelm State sovereignty. By protecting states and citizens from the imposition of a national religion, the Establishment Clause reduced the power of the Federal government over certain affairs of humans--affairs that might still be able to be controlled by the States.

As Michael McConnell eloquently put it: "Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states. The First Amendment thus preserved the status quo." It was 1818 before Connecticut gave up their established Church and 1833 before Massachusetts did. States continued to have establishments after the Establishment Clause was passed."

The notion that the Establishment Clause protects all individual citizens against all governmental action, even the States, emerged over the course of the 19th century. As Kurt Lash powerfully shows:

while the Founding era understanding of the clause is that it prevents the new Federal government from controlling the states concerning any establishment of religion, "the intent behind the incorporated Establishment Clause is not to be found in the writings of Thomas Jefferson or James Madison...Instead, the roots of the modern principle of nonestablishment are located in the contemporary understanding of personal freedom in the period just after the Civil War...By Reconstruction, the common interpretation of the Establishment Clause and its "counterparts" in the states was that no government had any legitimate power over religion as religion: the state could neither establish a preferred religion, nor could it visit "disadvantages or penalties" upon disfavored religious beliefs. Citizens by right were immune from such religious-based persecutions.

Put all of this together, and the overwhelming evidence of the theoretical and historical formation of the Establishment Clause powerfully suggests that the clause constrains government action in order to protect the free religious exercise rights of individual citizens. The Clause is a structural constraint on government power to preserve individual citizen's liberty of religious practice and belief.

Nothing in the founding era records that has been discovered so far, nor in the colonial experience, sheds much if any light on the Establishment Clause's applicability to constrain government power when acting in the foreign context, on non-citizens.

Next week: How has the Court interpreted the Establishment Clause and does that jurisprudence shed any light on our question?
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