The most remarkable thing about City of Boerne v. Flores

[Michael MASINTER]

On Sat, 28 Jun 1997, tom berg wrote:

> I have a question for Marci Hamilton or others about the
> separation of powers argument against RFRA.  And some
> comments.
>
> The Court in the Civil Rights Cases held that the
> Fourteenth Amendment does not bar private racial
> discrimination.  Congress later passed the Civil Rights Act
> forbidding private entities to discriminate by race (much
> later, in fact, but one could imagine the two events being
> closer together).  Suppose, for the sake of argument, the
> Act enacted the precise standard that would have applied
> under the Equal Protection Clause -- say, forbidding
> intentional discrimination.  Suppose that in passing the
> Act, Congress expressed sharp disagreement with the Court's
> narrow construction of the Fourteenth Amendment, and said
> that it was applying the Fourteenth Amendment concept of
> racial equality to private entities -- but it also said it
> was relying on the Commerce Clause.  The so-called
> separation of powers argument against RFRA purports to
> invalidate RFRA without regard to whether Congress acted
> within one of its powers (Article I or 14th Am section 5).

        But there is no Article One power which even arguably authorizes
RFRA; there plainly is Article One power to enact laws forbidding private
discrimination.  As Justice Scalia notes in Printz, Article One empowers
Congress to regulate persons, not states.  Concededly Justice Thomas
would, were he ever to have his way, overturn the last seventy years of
commerce clause rulings, but the rest of the Court seems in no hurry
(though Lopez caused some concern).


> Would that argument not also invalidate the Civil Rights
> Act without regard to whether it was supported by the
> Commerce Power, since Congress disagreed with the Court and
> legislated the rule the Court had rejected?

        No, for the reasons above; Congress has Article One power; end of
discussion.

>
> The references to separation of powers in Boerne are easily
> explained by the fact that the section 5 issue boils down to
> a separation of powers matter.  Congress is limited in
> section 5 to enforcing the Constitution (i.e. 14th Am
> section 1), and the question became (as with Marbury) whose
> construction of the Constitution would prevail, the Court's
> (*Smith*) or Congress's (the compelling interest standard).
> The Court said its view prevails because the judicial
> branch, not the legislative, has the final duty to define
> the meaning of the Constitution.  That's how separation of
> powers comes in -- under section 5, not as a free-standing
> argument -- and therefore it is limited to striking down
> RFRA against the states.

        Boerne is much more about limiting section five power than about
separation of power.
>
> If Boerne were a serious separation of powers ruling, one
> would have expected, as a matter of even the most minimal
> judicial workmanship, some discussion of U.S. v. Klein and
> other cases.

        The target was Section five, not intramural power struggles within
the federal government or religious freedom.  Boerne is the next logical
step in the gradual erosion of the victory of the national government over
the states that began in Congress with the end of real Reconstruction and
in the Court with the Civil Rights Cases and the Slaughterhouse Case.  The
Court was wrong then and wrong now.  But it is far from finished.  Within
a decade, not much more will remain of the Civil War in our history than
the end of slavery.  But it was about much more.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu