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

[Michael MASINTER]

On Wed, 24 Jun 1998, Jack Balkin wrote:

> 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.

        Although the New Deal represented to a great degree the new social
contract Jack describes, how are its terms relevant to the reach of the
Commerce Clause vis a vis RLPA?  The legislation does not even purport to
protect people from the overreaching hand of private power.  It decreases
the exercise of federal power over private power, increases the exercise
of federal power over states, and in the process strengthens rather than
weakens the private exercise of power.  RLPA bears no analogy that I can
see to any New Deal legislation, and therefore the Court's approval of
that legislation as a permissible exercise of CC power tells nothing about
the constitutionality of RLPA.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
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masinter at law.acast.nova.edu