(fwd from Kurt Lash) re: Religious Liberty Protection Act -Reply

[Jack Balkin]

Kurt Lash writes:

However, Tom jumps
> over 1868 (Doug is content to rely on pre-Bill of Rights commerce
power)
> and argues that Congress' power to enact RLPA came with the
expansion of
> the commerce power in 1937.  But such power violates the limits of the
> original First Amendment, and I am not aware of any interpretation of
the
> New Deal that increases Congress' power over First Amendment
liberties
> (see Caroline Products footnote 4).

This misunderstands what 1937 is about, and it certainly misunderstands
the relationship of the Carolene Products footnote to the text of that
opinion.   The New Deal proposed a new social contract: in return for
expanded federal power the government would use that power in the
public interest to protect people from the overreaching hand of private
power.  From now on all social and economic legislation would be
granted a presumption of constituitonality by judges reviewing legislation.
Footnote 4 says that this presumption of constitutionality would not apply
in three situations:  (1) where the legislation abridged liberties listed in the
text of the Constitution, and in particular, the Bill of Rights; (2) where the
legislation would tend to undermine democratic processes and; (3)
where the legislation would tend to perpetuate an unjust system of social
status that would not likely be undone by democratic processes.

Carolene Products is about judicial review.  It is *not* a statement about
lack of legislative power.  In particular, it does not claim that Congress is
without power to legislate with respect to religion or any other subject.  It
merely holds that courts will scrutinize such legislation more carefully
where it touches on certain subjects.  From the standpoint of Carolene
Products, the 1st amendment is about liberties not about congressional
powers.  If you think this is a transformation of the meaning of the 1st
amendment from 1789, so be it.  (But frankly, if there is one clause of the
constitution where following concrete original understandings is pretty
stupid, it is the 1st amendment.  But that's another a topic for another
discussion entirely.).