Boerne and Treaty Power

[Lash, Kurt]

Michael McConnell asks in regard to the impact of the 14thA on the First
Amendment (and the 1A's impact on the treaty power): "The beginning is
"no state shall ...." How can this language be read to amend a provision
that begins "Congress shall"?



One of the most difficult issues surrounding incorporation, I think, is
the impact of that amendment on other provisions in the constitution that
appear to have little to do with the states.  Some impacts are clear:
Obviously the 14thA modifies the scope of the 10thA.  Similarly, section
5 of the 14thA adds to the list of congressional powers in Art I section
8.  Finally, the incorporated rights from the first 8 amendments need to
be "tweeked a bit" ("tweeked a lot," I would say) in order to be sensibly
incorporated against the states.  But what of the original 1A?  That
amendment applied only against the federal government.  The 14th A
appears to apply only to the states.  Any theory that supposes the one
substantively affects the other is, at the very least, nonintuitive.

Nevertheless, I believe that adoption of the 14th A had a necessary
impact on the scope of the 1A.  Consider the First Amendment: "Congress
shall make no law respecting an establishment of religion "  Let's assume
for the moment that the federalist reading of this amendment is correct:
Antifederalists were concerned that Congress would try to use its
enumerated powers to meddle in religious affairs best left to the states.
 The public understanding of the 1A was that it would prevent any such
use of an enumerated power.  Congress now was prohibited from passing any
legislation interfering with state religious establishments (by treaty or
otherwise).

Now, consider the 14th Amendment:  The second sentence of section 1
reads:  "No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States."  To this is
added section 5: "Congress shall have power to enforce, by appropriate
legislation, the provisions of this article."  Let's assume that one of
these "privileges or immunities" was a citizen's right to be immune from
state enforced religious establishments.  If so, then under section 5,
Congress was granted power "to interfere" with such establishments by
passing appropriate legislation.  Presumably, if Congress believes that a
treaty is one appropriate means of enforcing the 14thA, then the 1A would
no longer stand as a bar to such a treaty.  This, of course, means that
the 14thA altered the substance of the original First Amendment:
Congress now has power where the original 1A prohibited power.  This does
not cancel out the original establishment clause, it changes its purpose
and scope: The 1A no longer stands as a guardian of federalism, it now
stands as a protection of individual liberty.

Two critical assumptions inform the theory:  1) the original
establishment clause protected state religious establishments, and 2) the
14thA "privileges or immunities" clause protects US citizens from state
religious establishments.  If these two assumptions are correct, I think
the conclusion that the 14thA changed the purpose and scope of the 1A
necessarily follows.



Kurt Lash (Loyola Law School, LA)