What a refreshing opinion!
It matters not whether one approves or disapproves of the strict neutrality standard of religious freedom Justice Scalia laid down in Employment Division v. Smith.(1) I have long been sympathetic to the argument that the Free Exercise Clause grants no special exemptions from generally applicable laws, but I am troubled by such issues as the confidentiality of confessions, gender discrimination in the priesthood, and sacramental wine. On the question presented by City of Boerne v. Flores,(2) however--the question of separation of powers, federalism, and the rule of law raised by the Religious Freedom Restoration Act (RFRA)(3)--there could be only one answer. There was really not much to say, and Justice Kennedy said it: Section 5 of the Fourteenth Amendment empowers Congress to enforce its provisions, not to revise them.(4)
Justice O'Connor, who thought Smith was wrong, agreed with the majority on this point.(5)
That the Fourteenth Amendment empowers Congress to enforce but not to revise its provisions is not only what the Constitution plainly says;(6) it also reflects the original understanding. When Congress provided statutory sanctions for violations of the amendment, the Court upheld the statute;(7) but when Congress went beyond the amendment to create new limitations of its own, it was called to order by the Court.(8)
There are circumstances in which, as the Court acknowledged, a new limitation or prohibition can qualify as a legitimate means of enforcing the amendment itself.(9) The Court held that literacy tests for voters did not per se offend the Fifteenth Amendment because they did not, on their face, discriminate on grounds of race.(10) But the tests were so often administered in a discriminatory fashion, and discrimination was so difficult to detect and prove in the individual case, that Congress concluded a prophylactic ban was necessary to prevent evasion of the constitutional command. The Court correctly upheld this provision as an appropriate means of enforcing the Fifteenth Amendment.(11)
As the Court recognized in Flores, there was a similar line of equally unimpeachable decisions under the essentially identical enforcement provision of the Eighteenth Amendment.(12)
The Court found no evidence of a comparable problem in Flores.(13) Congress simply disagreed with the Supreme Court's interpretation of the Free Exercise Clause.(14) And thus the many precedents permitting Congress to forbid practices designed to circumvent constitutional restrictions did not apply.(15)
The only memorable aspect of this part of the opinion is that, as in striking down Congress's insolent attempt to keep guns out of schools in United States v. Lopez,(16) the Court exercised meaningful scrutiny in enforcing federalistic limitations on congressional power--as it had seldom done during the preceding fifty-eight years. In demanding "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end,"(17) the Court in Flores set forth an attractive new test to serve notice that it would no longer blindly accept untenable congressional pretenses that a particular measure was "appropriate" to enforce the Civil War amendments--or "necessary and proper" to protect interstate or foreign commerce. Nothing less would be consistent with Marbury v. Madison.(18)
Thus, the case for RFRA stands and falls with the proposition that Congress may reverse the Supreme Court's interpretation of the Constitution. But Congress cannot tell the Court what the Constitution means.
The House of Representatives recognized this nearly 200 years ago in a largely forgotten episode connected with the mysterious Western adventures of Aaron Burr. Apprehended following the dispersal of his puny band of thugs on the Mississippi and sent to Richmond for trial,(19) Burr was acquitted by a reluctant jury on the basis of Chief Justice Marshall's narrow reading of Article III's definition of treason.(20) Republican zealots promptly proposed, and the Senate with unseemly haste adopted, a sweeping redefinition of the offense broad enough to cover Burr's case.(21)
Whether Marshall was right or wrong is neither here nor there. As even Republican members of the Senate pointed out, Article III gave Congress power only to punish treason, not to define it;(22) the Constitution itself defined the offense.(23) It did so, moreover, in order to restrain Congress, for in England the legislative power to define treason had been greatly abused.(24) The...