Boerne Fallout

[Steven D. Jamar]

A response to Rick Hills - I think one can limit the section 5 powers to
just fundamental rights and have meaningful federalism still intact.

Here is an undigested thought - how about using the treaty power to sustain
RFRA?  The Senate ratified the C&P Covenant a few years back and it
guarantees religious liberty - so how about legislation giving that treaty
effect?  Offhand, I don't see how, in light of Holland v. Missouri, this
could be attacked by the states.

Has anyone else noticed how much more press this decision is getting than
did (1) Smith or (2) RFRA when enacted?  Hours upon hours on CNN and MSNBC
and nightline and such, and front page and many column inches in the
Washington Post.

BTW, in the past 24 hours I have finally learned how to pronounce "Boerne"
- if McNeil had it right.  I had thought "Berne" - as in Switzerland, or
"born", but not "Bernie"!  Though I do relish the idea of classroom
discussion about "Bernie."

Cheers,
Steve Jamar

>         I think that this statement is unfair to the Court.  Another realist
> answer is that the Court could think of no way to uphold RFRA and yet place
> a meaningful limit on Congress' section 5 powers.
>
>         Indeed, whatever one thinks of Boerne, I believe that the following
> statement is accurate: If the Court had upheld RFRA, then the Court would
> essentially withdraw from the business of policing Congress' sec. 5 powers
> and leave such policing entirely up to the (federal) political process.  (If
> you disagree with this statement, then I'd like an example of a law that
> would exceed Congress' sec. 5 powers under any theory that would sustain
> RFRA as "appropriate" enforcement of sec. 5).
>
>         Such an embrace of Choperism is defensible -- but it would require
> overruling both Lopez and New York to be consistent.  I do not think that
> one needs to have a special hostility to RFRA to reject such judicial
> abdication.
>
>         Rick Hills
>         University of Michigan Law School

Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar at law.howard.edu

The more you know, the more you know you don't know.