(fwd from Kurt Lash) re: Religious Liberty Protection Act -
Steven D. Jamar
sjamar at LAW.HOWARD.EDU
Thu Jun 25 19:55:46 PDT 1998
Kurt Lash seems to view things as all or nothing here, which cannot be
right in a modern society. What does the term "regulate" mean? Surely no
one would argue that the 1st amendment is meaningless - yet that seems to
be what Prof. Lash insists is the result of giving Congress the power to
pass laws which regulate to some degree religion.
Also, it seems that establishing religion does not mean the same thing as
regulating or touching upon or affecting. So it seems likely that RFRA and
RLPA, if they can pass the establishment test, would seem to be ok as an
exercise of power under the Civil War Amendments as well as under the
But then, I cannot accept the cramped reading of the Constitution, and the
idea that the Constitutional meaning cannot change, and the idea that even
federalism itself cannot evolve with the times. And so we start at such
different starting places it is no wonder we are probably talking past each
other. Indeed, I have trouble even seeing what problem Lash is talking
about. I read his words, I think I understand them, but then I don't.
I assume that Lash would turn back the clock in a Borkian fashion and
eliminate all administrative law - which surely was never contemplated and
which surely blurs lines of power and separation of powers.
So do we need a new constitutional convention to hash out the new
federalism? With those of us internationalists and federal power
supporters trying to compromise with the states rightists, isolationists,
and devolved authority supporters? (Not that every one on any side agrees
on every proposition). No. I think not. I think the court is right.
Times change. The constitution is a sturdy document memorializing
principles which are to be respected, but adapted.
Could this lead to tyranny and horrible interpretations? Surely. Any
document, any idea can be perverted and interpretted away to nothingness or
to its opposite. Did anyone have any constitutional rights during WWII?
No. But we have recovered some since then.
It is not the paper which insures liberty. Not words ringing down the
centuries, but the willingness of all of us to live by those concepts - and
to adapt them to a changing world.
So, Prof. Lash's question seems nitpicky to me, almost unintelligible; too
tied to formal logic, which has never been the life nor lifeblood of the
law; too tied to some magic moment of change, which is not how the law
changes; too wrapped up in form, not enough concern for substance; too
concerned about process, not enough about content; too concerned about
history, not enough about current needs.
Congress can act to preserve our liberty. Even (or perhaps especially)
from itself. This, it seems to me, is in the nature of things. This
simple truth is explicitly recognized in the international law of human
BTW, I would put Congress's power to pass this law on the C&P Treaty which
requires states parties to respect conscience and religious beliefs and
practices (Art. 18). It is a fundamental part of IHR law that states
parties are not simply restricted by IHR, but are obligated to act to
establish and further these rights.
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 penalty for laughing in a courtroom is six months; if it were not for
this penalty the jury would never hear the evidence." H.L. Mencken
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