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

[Michael McConnell]

Let me offer my thanks to Kurt Lash for his informative
reply, much of which is repeated below, with my comments:

> Michael McConnell believes that my theory incorrectly collapses the two
> (original) religion clauses into a single proposition regarding federal
> power.  He claims that although federalism informed the establishment
> clause, the free exercise clause was an individual rights bearing
> provision.  Michael apparently does not believe that the free exercise
> clause itself stands as a source of power for congress to protect free
> exercise in the states, but he reads the clause as allowing federal
> efforts on behalf of free exercise when incident to a separately
> enumerated power.

Correct.

> I understand the textual argument:  There are two clauses, therefore,
> they must have different meanings.  There are variants of this argument:
> the establishment clause uses the word "respecting," while the free
> exercise clause uses the word "abridging"-- This must mean, the argument
> goes, that the drafters intended (and the ratifiers understood) the
> clauses to contain two different types of restrictions.

The point is not just that different words were used, but
that the word "respecting" has precisely the two-way
meaning that the word "prohibiting" does not.

  Having made the textual point, Michael then asks if I
have any basis for interpreting the
> free exercise clause to read "Congress shall make no law respecting the
> free exercise of religion?"
>
> Lots.  I won't repeat all of the evidence that I have cited on this list
> before, but allow me some highlights.  Jefferson's Kentucky Resolutions:
> "no power over the freedom of religion . . . being delegated by to the
> United States by the Constitution . . . all lawful powers respecting the
> same did of right . . . remain with the states"; Jefferson's Second
> Inaugural "In matters of religion, I have considered that it's free
> exercise is placed by the Constitution independent of the powers of the
> general government", Jefferson's letter to Rev. Miller "no law shall be
> made respecting the establishment, or free exercise, of religion."  There
> are other examples from James Madison and Joseph Story.  You may think
> these words mean something less than their literal meaning.  I believe
> Jefferson meant exactly what he said.

Putting aside the fact that Jefferson had an exceptionally
constrained view of federal power, I just do not think that
loose paraphrases mean very much, when they are not
directed at the particular issues. The point of the
Kentucky Resolutions was precisely that the federal
government was abridging the freedoms of speech and
religion--something that it could not do, even though
states could. It does not suggest that federal action
respecting religion is necessarily unconstitutional, even
if it neither infringed the free exercise of religion nor
affected existing establishments. The other examples are
even weaker.

>  In fact, if Congress could
> interfere with state regulation of religion by way of free exercise +
> enumerated power, then this would render the federalist establishment
> clause an empty promise that Congress could not interfere with state
> establishment of religion.

This is a more powerful argument, in principle. But given
the fact that, as these things were understood at the time,
free exercise rights could coexist with an established
religion, it would seem to follow that there are at least
some laws that Congress could pass to protect religious
exercise in the states (pursuant to an enumerated power)
that would not be laws respecting an establishment of
religion.
>
> So let me ask Michael:  Since I cannot prove one way or another what
> Congress might have done, can we consider what Congress did do? Is there
> evidence that Congress ever regulated--or attempted to
> regulate--religious freedom under its commerce power?  One cannot say
> there was no occasion to do so--religious based regulation of commerce in
> the states was rampant (see my reply to Alan Brownstein).

Well, Congress appointed military chaplains, financed
missionaries to Indian tribes, and declined to collect
excise taxes on the importation of religious objects, to
name a few.  Is there any evidence that anyone objected to
a proposed action of Congress on these grounds? (Two can
play the not-very-helpful game of invoking silence.) This
sort of argument is weak, because in truth Congress did
very little for the first hundred years. The failure of
Congress to pass a bankruptcy statute did not mean that
anyone doubted Congress's power; the failure of Congress to
this day to pass a Uniform Commercial Code does not mean
that it could not do so.

As for your reply to Alan Brownstein, the failure of
Congress to stop the southern states from taking various
actions against slavery can easily be explained by
politics, and does not suggest a lack of power.
-- Michael McConnell (U of Utah)