Inverting the First Amendment

[Lash, Kurt]

My previous post failed to address Michael's particular argument that
Congress considered, but rejected a "Lash-like" proposal: "Congress shall
make no laws touching religion, or infringing the rights of conscience."
This could be construed as "Lash-like."  But notice that it does not
clearly preserve state power to regulate religion.  Under this version,
Congress conceivably could pass a law prohibiting states from making any
law "touching religion" and argue that it was following the "principles"
of the 1st A (this interpretive approach, of course, is what Doug and
Michael are arguing in favor of).  Only the draft ultimately adopted
clearly protects state regulation of religion (religious establishments)
by prohibiting any law respecting an establishment of religion.



Kurt Lash

Loyola Law School (Los Angeles)