RFRA & Federal Law
klash at LMULAW.LMU.EDU
Fri Jan 17 09:23:47 PST 1997
Michael McConnell is correct that my position on the jurisdictional
religion clauses (I cannot speak for Steve Smith), severs the free
exercise clause from what appear to be its obvious counterparts in the
states. He further argues that it is incoherent to believe that the same
provision would be understood to have different meanings, depending on
which constitution was in play (federal or state).
Perhaps so. But in this case, as Michael himself points out, the words
of the federal clause were not the same as any in the states. So his
point must be that it is incoherent to believe that "protecting free
exercise generally" must mean the same thing at the federal level as it
meant at the state level. Putting his point in positive language,
Michael claims "[b]y far the more plausible interpretation is that the
framers expected the federal free ex clause to do for federal power
approximately what the state free ex clauses did for state power."
Think about that sentence for a moment--it cannot be correct. Michael
appears to concede that free exercise in the states was regulated in
accordance with the state's established religion. Indeed, I think the
evidence in this regard is irrefutable. The Constitution needed to be
amended in order to give the federal government such power? The
*purpose* of the Bill of Rights was to cabin federal power and allay
fears that the new federal government would attempt to involve itself in
matters best left to the states.
I may be incorrect to think that the free exercise clause originally
meant "hands off, feds!", but I think the context in which the Bill was
drafted makes my interpretation more plausible than the alternative.
Kurt Lash, Loyola (LA)
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