I just want to add to Paul's list of works dealing with the Establishment Clause's transnational applicability my own work on the subject. See in particular my 2010 article "Establishment Clause-Trophobia: Building a Framework for Escaping the Confines of Domestic Church-State Jurisprudence" published in The Columbia Human Rights Law Review: http://www3.law.columbia.edu/hrlr/hrlr_journal/41.3/Merriam.pdf.
I have argued there, as well as in other works, that based on the Court's precedents in this area (in particular, the Insular Cases, Verdugo-Urquidez, and Boumediene) the applicability of a constitutional provision abroad turns on two factors: (1) the nature of the right in question, and (2) the extent of control that the U.S. government exercises over the area where the dispute has arisen. See also my discussion of the "impracticable and anomalous" standard in the William & Mary Bill of Rights Journal: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1631&context=wmborj I doubt, however, that a ban on Muslim immigration would raise a transnational applicability issue -- the Supreme Court cases dealing with the transnational applicability of other constitutional provisions have generally arisen in occupied territories and military bases, not borders or embassies. -Jesse On Thu, Dec 10, 2015 at 1:01 AM, Paul Horwitz <phorw...@hotmail.com> wrote: > I'm sorry not to see reference in the discussion to preexisting scholarly > discussions of the question of the extraterritorial reach of the EC or other > clauses of the First Amendment. No offense to the worthy statements of those > who have posted, or written elsewhere, although I do think academics > generally have a comparative advantage at calm and slow reflection, not > short-term reactions and predictions, in which they are largely as subject > to cognitive limitations as all humans are. > > To that end, may I commend Timothy Zick's The Cosmopolitan First Amendment: > Protecting Transborder Expressive and Religious Liberties (Cambridge > University Press, 2015), > http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210. > His endnotes point to other relevant and reflective treatments. See also > this valuable report of a task force on religion and U.S. foreign policy > sponsored by the Chicago Council on Global Affairs: > http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf. > I think everyone will find both sources valuable, interesting, and > time-consuming. > > > > On Dec 9, 2015, at 11:12 PM, James Oleske <jole...@lclark.edu> wrote: > > Although Rick and Chip agree that Trump's proposal violates the > Establishment Clause, they travel different paths to that conclusion, and > those different paths raise (I think) an interesting question: > > Under the Court's precedents, is it clear that the "denominational > discrimination" rule Rick invokes is, like the "ecclesiastical question" > rule Chip originally invoked, structural in nature and not rights oriented? > > Between O'Connor's opinion in Lynch, and the Court's opinions in Grand > Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of > language that makes the issue of endorsement or disapproval sound in > individual rights ("person's standing in the political community" "not full > members of the political community" “perceived by … nonadherents as a > disapproval[] of their individual religious choices"). In its latest > explanation of the denominational-discrimination rule in McCreary, the Court > wrote that "Manifesting a purpose to favor one faith over another ... > clashes with the 'understanding, reached ... after decades of religious war, > that liberty and social stability demand a religious tolerance that respects > the views of all citizens." If we're talking about non-citizens who are not > part of the American political community, could one colorably argue that the > denominational-discrimiantion rule -- as currently understood by the Court > -- does not apply? > > - Jim > > On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com> > wrote: >> >> I missed Chip's great post before I asked my question. >> >> I agree completely with what Chip says here. It seems like a clear >> violation of EC limitations on National power. The clearest command of the >> EC forbids denominational discrimination by the National government >> ("Congress shall make no law"). >> >> The only problem might be standing. Would a non-citizen-foreign-national >> have standing to challenge the exclusion under the EC? >> >> Rick Duncan >> Welpton Professor of Law >> University of Nebraska College of Law >> Lincoln, NE 68583-0902 >> >> >> ________________________________ >> From: Ira Lupu <icl...@law.gwu.edu> >> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> >> Sent: Tuesday, December 8, 2015 7:10 PM >> Subject: the unconstitutionality of barring Muslims from entering the U.S. >> >> There has been much discussion in the press and on blog posts re: the >> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from >> entering the U.S. Several commentators have suggested the "plenary power" >> doctrine, governing Congressional power over immigration, would insulate >> such a proposal from a finding of unconstitutionality. >> I think the strongest constitutional argument against this proposal is >> based on the Establishment Clause, which severely limits the government's >> power to decide who is and who is not a Muslim. Suppose the person seeking >> entry disputes the label; how will immigration officials adjudicate the >> question? What criteria would the government apply to decide who fits the >> disqualification? This is an ecclesiastical question, the decisions of which >> are off-limits to the government. (See Hosanna-Tabor v. EEOC; more >> generally, see Lupu & Tuttle, Secular Government, Religious People, chaps. >> 1-2.) >> Because the Establishment Clause is structural, and not rights-oriented, >> It does not matter whether or not the decisions pertain to American >> nationals. The plenary power doctrine cannot undo this structural >> limitation, any more than it can undo limitations based on separation of >> powers (e.g., Congress may not delegate to a congressional committee the >> power to process immigration cases). >> >> Reactions from list members to this argument? >> >> -- >> Ira C. Lupu >> F. Elwood & Eleanor Davis Professor of Law, Emeritus >> George Washington University Law School >> 2000 H St., NW >> Washington, DC 20052 >> (202)994-7053 >> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious >> People" ( Wm. B. Eerdmans Pub. Co., 2014)) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. -- Jesse Merriam, Ph.D., J.D. Assistant Professor and Pre-Law Advisor Loyola University Maryland http://www.loyola.edu/academic/politicalscience/faculty/merriam _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
