foreign aid and the establishment clause
stevenjamar at gmail.com
Mon Nov 9 14:13:12 PST 2009
There is, I respectfully submit, a chasm between what I said (that
providing such foreign aid is a matter of foreign policy for the
Congress and the President to decide) and Daniel Hoffman's assertion
that this statement cannot withstand scrutiny if taken literally.
I assume that he meant that if an assertion I did not make (that
anytime foreign policy is invoked the Court is debarred from
considering the matter) were taken to its (il)logical extreme, then
untoward results could occur. With that I agree. But that is neither
what I said nor what the law is.
I said, and still stand by my assertion, that the court would consider
the matter being discussed a matter for the Congress and the
President, not for the Court.
On Nov 9, 2009, at 5:05 PM, Daniel Hoffman wrote:
> --- On Sun, 11/8/09, Steven Jamar <stevenjamar at gmail.com> wrote:
> I can't imagine the Supreme Court finding a first amendment
> violation in such circumstances for several reasons.
> 1. It is a matter of foreign policy for Congress and the President,
> not the Court to decide.
> I realize that the Court has sometimes spoken as if this were the
> case, but this statement cannot withstand scrutiny. Taken
> literally, it would allow the political branches to circumvent any
> and all constitutional limitations, simply by promising a foreign
> government--or maybe even a foreign nonstate actor--to do so.
> It is one thing to be deferential in reviewing actions that impact
> our foreign affairs, but an entirely different matter to claim that
> the constitution and the judicial power have no role in this context.
> This is, I hope, a really wild hypo, but what if an Al Qaeda armed
> with WMD demanded we establish Sharia law?
> Daniel Hoffman
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute of Intellectual Property and Social
Howard University School of Law fax: 202-806-8567
"I do not at all resent criticism, even when, for the sake of
emphasis, it for a time parts company with reality."
Winston Churchill, speech to the House of Commons, 1941
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