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

[Lash, Kurt]

Eugene Volokh asks why the commerce clause cannot serve as a textual
mandate for [1998] laws regulating religion as an aspect of commerce.

To reiterate: Whatever power Congress had to regulate religion as an
aspect of commerce in 1789, that power was almost certainly removed by
the First Amendment (here I rely on both the text of the amendment, the
history surrounding its adoption, and almost unanimous post adoption
commentary--my article goes into more detail).  Whatever else the First
Amendment accomplished, it would have prevented a law like RFPA from
being passed in 1791.  So, to rely on the commerce clause as a source of
power to regulate religion in 1998, such power must have been "restored"
--and the limits of the First Amendment so modified--somewhere along the
way.

I am not aware of any interpretation of the New Deal as both expanding
commerce power and dissolving First Amendment restrictions.  Indeed, I
read footnote 4 to say that New Deal deference does not apply to laws
that impinge upon a First Amendment liberty.  This was Justice Jackson's
position in Barnette and the point of his disagreement with Frankfurter
in Gobitis.  So one cannot rely on the New Deal to justify this use of
the commerce power unless the meaning of the 1st Amendment has changed by
1937--and changed in a particular way that not only removes the
restriction on federal power to regulate religion in the states, but also
allows such regulation as an aspect of commerce.

Those who have read my work know that I believe that the original
restrictions of the 1stA were modified in 1868--but only to the extent
that Congress at that time was granted the power to enforce incorporated
liberties.

So my question remains: When and where did Congress get its (current)
power to regulate religion as an aspect of commerce?



Kurt Lash

Loyola Law School (Los Angeles)