city of boerne and substantive power theory and remedial power theory and supreme court

The previous essay inevitably leads to this one. What would happen if we applied the same method of learning to the tasks at hand in school or work? Where would that lead us? This essay experiments with that question.

The Legal Case on My Desk

For the last several weeks, I have been working on issues of free exercise of religion in the US Supreme Court's decisions. The current issue I am dealing with is the way that Congress tried to overturn the Supreme Court's 1990 Employment Division v. Smith holding by passing the Religious Freedom Restoration Act in 1993. Almost all members of Congress signed onto the bill, and Bill signed it, too, making it law. Then, all hell broke loose. Cases challenging its constitutionality began to pop up around the country, and the Supremes had to get back into the act again in 1997 through the City of Boerne case. One of the arguments challenging its constitutionality rested on a rather technical argument--that by passing the RFRA Congress had exceeded its powers under sec. 5 of the 14th Amendment. Hm. Not dinner table conversation, even in polite society. But, being the kind of person I am, I engaged in the following process of thinking and questioning.

I decided that I really needed to understand sec. 5 of the 14th Amendment. It merely says: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Well, as so often is the case in 14th Amendment jurisprudence, the words don't get you very far. Two "schools of thought" have arisen regarding the interpretation of the phrase. Does it mean that Congress is precluded from passing statutes that go beyond rights already recognized by the 14th Amendment, or does it suggest that this clause gives more expansive powers to Congress, maybe in line with the Necessary and Proper Clause of Article I? Well, I learned that these two theories have names: the former is called the "Remedial power theory" and the latter the "Substantive power theory," even though if you do an Internet serach for either you will get no results.

All this, you understand, is preparatory to my following questions. So, I decided to read the Petitioner's Brief in the City of Boerne case, which details these two theories. The former is based on the so-called Civil Rights Cases of the 1880s, while the latter received its impetus through the Voting Rights Cases of the 1960s/1970s. The questions start to flow. What were these Civil Rights Cases? How did they interpret which statutes? Do we really know the legislative history of these statutes? or the legislative history of Sec. 5 of the 14th Amendment? To what extent can we actually establish a "legislative history" of 19th century laws? Let's take our time with the quotations cited and the sources quoted in order to answer our questions.

Then, after we do this, we will want to understand the cases that gave Congress a broader power to interpret Sec. 5. The lead case is Katzenbach v. Morgan (1966), written by William Brennan. To what extent do we need to reconstruct the history of the times, when Voting Rights issues were in the air, in order to understand the Court's decision in 1966? Was the expansion of Congressional power by the Supreme Court in the 1960s and 1970s primarily motivated by a recalcitrant South (on racial issues) and should the Court now relax that power and "return" it to one more in line with the Civil Rights Cases? Or, should the Court realize that the nature of a growing society is to make sure that there is a strong center to hold the society from falling apart--a center that is captured by a Congress that had expansive powers under Sec. 5?

So, I saw that I needed to understand this issue but, as with many issues in constitutional law, the answers and even the issues themselves are about as firm as a wisp of cirrus cloud.

Conclusion

What you discover in law, no less than in immunization forms, is that way leads to way if you let it. The RFRA leads in two directions: either to Smith in 1990 and the cases that developed under the Court's "modern" free exercise jurisprudence or to the nature of Congressional power as contemplated in Sec. 5 of the 14th Amendment. And, the latter leads to labyrinthine ways itself, taking us into finer and finer roads and lanes and alleys and paths. You wonder sometimes that if following the paths lit by others that you eventually discover your own path or, more frightening, you just keep wandering. But why is the latter more frightening? I suppose it is only so to those who feel that they need "bedrock" knowledge in order to proceed in life. Shakespeare may be right that one of the true joys of sleep is that it "knits up the ravelled sleeve of care." But maybe our waking hours should be focused on unravelling that same sleeve.

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