The most remarkable thing about City of Boerne v. Flores

[Steven D. Jamar]

> Could Marci Hamilton or someone else explain to me why the
> "separation of powers" point is relevant to the
> constitutionality of RFRA as applied to federal government
> activity?
>
>

It is relevant, I think, only because the court may see itself as the
nearly exclusive guardian of the standards to be used in securing the
constitutional rights.  In cases where Congress wants to grant more rights,
it should do so substantively, not as a matter of trying to shift the
constitutional standard.  Furthermore, in cases of fundamental liberties
like religion, what is an expansion of rights for one group may contract
the rights for another - and so there is no pure expansion and this
balancing is to be done by the court, not Congress.

I think Idon't really buy this - I haven't thought it through fully, but
some of the language in the Boerne case seems to support this idea - the
language about the court setting standards of interpretation, etc.

Cheers,
Steve

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.