Boerne and Treaty Power

[Lash, Kurt]

Let me get this straight:  The proposition is that the power to make
treaties includes the power to make treaties that force the states to
comply with certain federal/international norms of individual religious
liberty.

I find it hard to believe that the Founders intended such a potential
reading of "necessary and proper" power to survive the enactment of the
First Amendment.  Consider what the implications would have been for
states with religious establishments.

However, even if a "free exercise treaty" power did not survive the First
Amendment, such a power may have been "reintroduced" with the passage of
the Fourteenth Amendment and the removal of much of the federalist gloss
of the original Bill of Rights (in fact, treaties in this period
reflected free exercise concerns).  Unfortunately, the Court in Boerne
did not consider whether the scope of free exercise (and, with it, the
scope of congressional power) expanded with the adoption of the
Fourteenth Amendment.  If the court continues to focus solely on the
Founding, I think it is quite likely that such a use of the treaty power
would be struck down.

Kurt Lash

Loyola Law School(LA)