RFRA/Original Understanding

[Robert Destro]

I am enjoying this discussion of history!

In response to Kurt Lash's point that "No power [over religion] meant
[Congress has/had] no power.", however, I must respectfully disagree.
One can certainly agree with his statement that "All power over *the
subject* was reserved to the states" (emphasis added), but disagree with
his reading of the text (and the history).

The key issue is how to identify "the subject."  If it is *religion*,
Kurt's reading is accurate. The federal government did not (and does not)
have political "jurisdiction" over "the subject" of religion.  (see my
articles!)  Congress does, however, have political jurisdiction over
(e.g.) the regulation of interstate and international commerce and the
land and naval forces of the United States. Moreover, it is explicitly
given authority to make laws "necessary and proper" to effectuating
policy on these matters.

Thus, where the subject is otherwise within Congress' jurisdiction, it
may legislate, but is subject to the constraint that it may not do so in
a manner that violates the First Amendment. Kurt apparently reads the
First Amendment is a "jurisdictional" bar: i.e. Congress can make no law
about religion, but he does so without regard to its language.

A fair "structural" reading of the Religion Clause is that Congress can
make "no law" *otherwise within its jurisdiction*  1) "respecting an
establishment of religion" (e.g., setting up an establishment in a new
state, or dis-establishing one in any State); or 2) "prohibiting the free
exercise thereof" through the exercise of its existing powers (e.g.,
explicitly prohibiting the importation of religious goods from abroad).

The problem here is the one identified in both Smith & Texas Monthly: how
free is a legislature to "accommodate" the needs of religious believers?
[I discuss that issue at length in my article].  The subject of these
cases is: "Which branch is in charge of accommodating religious liberty
claims? Judicial or legislative?"

I respectfully suggest that my reading is supported by the "No Religious
Test" Clause of Article VI.  If Congress had really wanted to create a
federal religious establishment, religious tests for "offices and public
trusts under the United States" would have been a key device for doing
so. The Test Clause limits the Article I powers of the Congress, to the
appointment powers granted to the Executive, the Congress and the States,
and to the executive power itself.  It also constrains judicial
discretion by explicitly negating any inference that the Necessary and
Proper Clause can be used to justify religious tests.

Thus, I ask Kurt: If Congress has no power over "the subject" of religion, how
did the Court (which is, after all, a part of the federal government) acquire
jurisdiction to prescribe national rules on "the subject"?

Bob Destro
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  Robert A. Destro                                  Destro at law.cua.edu
  Columbus School of Law                                  202-319-5202
  The Catholic University of America                  fax:202-319-4498
  Washington, D.C. 20064-8005                   http://www.law.cua.edu