RFRA & Federal Law

[Michael McConnell]

Kurt Lash writes:

> As I read the historical record, the purpose of the first amendment was
> to ensure that Congress not be allowed to regulate religion at all--by
> way of the nec. and proper clause, or any other way.  In the ratifying
> conventions, Madison and Iredell went out of their way to refute
> antifederalist claims to the contrary, and explicitly disavowed any grant
> of congressional power over the subject of religion.  Iredell, in fact,
> explained that the Constitution lacked a religious freedom clause
> precisely because such a provision might give Congress an excuse to
> regulate religion.  I am convinced that the Framers would have considered
> any introduction of religious categories into otherwise valid federal
> laws as an exercise of power over the subject of religion.

Without seeing much more direct evidence, I cannot agree with this.
Sure, Madison, Iredell, and the other supporters of the Constitution
of 1787 disavowed any congressional power over the subject of
religion. That was their counter to the demand for a Bill of Rights.
But they lost the argument! A Bill of Rights was the price extracted
for ratification. And they should have lost; it was a silly argument.
Almost every enumerated power in Article I, Section 8 can, under some
circumstances, be used in a way that would infringe the exercise of
religion. That was the problem. (To be sure, even after ratification
of the First Amendment, it remained an important principle that
Congress had no enumerated power to regulate religion, as such -- but
the significance of the Free Ex clause is that it affects exercises
of congressional power under the various enumerated powers.)

Accordingly, the language of the Free Exercise Clause does not say,
"Congress shall make no law respecting religion." It says "Congress
shall make no law respecting the establishment of religion, or
prohibiting the free exercise thereof." The establishment clause was
a jurisdictional provision (Congress could not legislate on the
subject of the establishment of religion, thus leaving the issue of
establishment wholly to the states). But the free ex clause was not
worded that way. There is no "respecting" language--instead, the
language is "prohibiting." The plain interpretation of this language
is that none of the laws Congress passes (pursuant to the enumerated
powers of Article I, Section 8) shall prohibit the free exercise of
religion. Given this provision, it is "necessary and proper" for
Congress to craft its laws in such a way as to avoid prohibiting the
exercise of religion.

The House briefly adopted, then rejected, a New Hampshire proposal to
deny Congress power to pass all laws "touching religion." This might
well have had the meaning Lash ascribes to the Free Ex clause; as an
establishment state with a states' rights orientation, that would
make sense as a New Hampshire proposal. But it was not adopted. (Even
so, I am not entirely sure it would have had the Lash meaning:
arguably, a generally applicable law affecting religion is one that
"touches" religion; but I do not put much weight on this.)

There is not much discussion of the free ex clause in the
congressional debates, but what little there is suggests that it was
designed to protect the liberty of conscience from "the gentlest
touch of governmental hand" (quoting Carroll, loosely from memory),
for the benefit of "many sects." (Carroll was Catholic.) This is not
the rhetoric one would expect if the provision were purely
jurisdictional.

Finally, if the Free Ex clause merely meant that Congress had no
power over religion, which is what the unamended Constitution of 1787
already meant, it would have been redundant. Congress would surely
have been accused of bad faith by the antifederalists who had
insisted on the need for further protection.

































-- Michael McConnell (U of Utah)