Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Amendment I: City of Boerne v. Flores, Archbishop of San Antonio  
 
 
"[T]he only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. . . .  [A] person cannot alienate his will, more particularly his control over his own mind and body. . . .  [M]an’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so." 1
 
 

Amendment I (cont’d):

Boerne v. Flores:

The RFRA / AIRFAA regimen continued as the free exercise status quo until City of Boerne v. Flores, Archbishop of San Antonio, et al. (1997). 2 This case arose after the Roman Catholic archbishop of San Antonio "applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit . . .  the Archbishop brought this suit challenging the permit denial" (521 U.S. 507, Syllabus). The zoning authorities denied the permit based "on an ordinance governing historic preservation in a district which, they argued, included the church" (521 U.S. 507, Syllabus). Archbishop Flores based his case primarily on the RFRA. The "federal" District Court in which Archbishop Flores brought his case "concluded that by enacting RFRA Congress exceeded its enforcement power under §5 of the Fourteenth Amendment." (521 U.S. 507, Syllabus), and RFRA was unconstitutional. The District Court also certified its judgment as "interlocutory", meaning that it needed to be appealed and adjudged by a higher court. Archbishop Flores appealed to the 5th Circuit Court of Appeals, which reversed the District Court’s finding, and found instead that the RFRA was constitutional. The City of Boerne took the case to the supreme Court. The supreme Court "Held: RFRA exceeds Congress’ power." (521 U.S. 507, Syllabus), meaning that Boerne won and Flores lost.

Kennedy’s Opinion:

This opinion is another product of the Rehnquist Court’s attempt to revive State’s rights, even if it means repudiating "The powers . . .  reserved . . .  to the people". 3 This is clear by examining the way this opinion characterizes the facts in Boerne, and the way it characterizes the RFRA upon which Flores based his case. 4 The Court focused above all on §5 of the 14th Amendment. Before we examine §5, please remember (i)that Smith I would never have existed if the supreme Court had not granted Oregon certiorari; (ii)that it would have never granted certiorari if it had not decided to incapacitate free exercise incorporation; (iii)that the Oregon supreme Court’s application of the incorporated "federal" 1st Amendment was perfectly consistent with virtually all free exercise jurisprudence for the previous forty years; (iv)that the supreme Court’s decision to grant certiorari in Smith I was a blatant exercise of "judicial activism"; (v)that without Smith I, Smith II would have never existed; and (vi)that without Smith II, the RFRA would have never existed. The RFRA makes it obvious in the "Findings" section that Congress passed the RFRA in response to Smith II. The opinion in Boerne says succinctly that "Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, (494 U.S. 872)" (521 U.S. 507, Syllabus). With Boerne the Court returned the nation’s free exercise jurisprudence to its post-Smith, pre-RFRA status, with the exception that AIRFAA still stood largely undisturbed. 5 Here’s a synopsis of Justice Kennedy’s majority opinion:

In imposing RFRA’s requirements on the States, Congress relied on the Fourteenth Amendment, which . . .  guarantees that no State shall make or enforce any law depriving any person of "life, liberty, or property without due process of law," or denying any person the "equal protection of the laws," §1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," §5. . . .  Although Congress certainly can enact legislation enforcing the constitutional right to free exercise of religion, . . .  its §5 power "to enforce" is only preventive or "remedial," . . .  The Amendment’s design and §5’s text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment’s restrictions on the States. Legislation which alters the Free Exercise Clause’s meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. . . .  There must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. . . .  The Amendment’s design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary . . .  RFRA is not a proper exercise of Congress’ §5 enforcement power . . .  . (521 U.S. 507, Syllabus)

To understand clearly why the Court has returned American free exercise jurisprudence in general back to the belief-action status it had between Smith (1990) and RFRA (1993), 6 we need to look at Boerne in detail.

(a)RFRA relied on 14th Amendment §1:

When Archbishop Flores brought his original suit to the "federal" District Court for the Western District of Texas (877 F.Supp 358, 1995), he relied heavily on the RFRA. 7 He claimed that the denial of the building permit "placed a substantial burden on the church members’ ability to freely exercise their religion". 8 In contrast to Flores, Boerne’s attorneys claimed that they had a right to deny the building permit, and they claimed that the RFRA was unconstitutional. Flores’s attorney’s argued that by using the balancing test mandated by the RFRA, it was evident that Boerne’s zoning laws flunked the compelling interest test. Flores argued that the zoning was merely about historical landmark preservation, and this was nowhere near as important as free exercise. — Boerne’s attorney’s based their case on a set of criticism’s of RFRA that had developed in the legal community since it became law in 1993. The criticism of RFRA prior to Boerne focused on three areas: (i)separation of powers, meaning the claim that Congress had overstepped its authority by mandating that the judiciary apply the compelling interest test in free exercise cases; (ii)State’s rights; and (iii)the fact that each exemption to a neutral, generally applicable law essentially established the exempted organization. The area upon which the majority at the supreme Court focused was primarily State’s rights.

The opinion of the District Court, in finding against Flores, focused on the State’s rights / §5 / congressional authority issue and the separation of powers / judicial review / Marbury v. Madison issue. Section 5 of the 14th Amendment says,

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

RFRA also depended upon 14th Amendment §1, which says,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

When Archbishop Flores appealed to the 5th Circuit, the latter court reversed because it found that neither separation of powers nor Congress’s §5 authority were violated.

When Boerne appealed to the supreme Court, Justice Kennedy’s majority opinion reversed the 5th Circuit on both issues. But in his opinion Kennedy focused primarily on the State’s rights / §5 issue. He said that "In defense of the Act [(RFRA) 9] respondent [Flores] contends . . .  that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment’s Due Process Clause, the free exercise of religion" (521 U.S. 507, Kennedy’s Part III-A). Regarding free exercise being incorporated to the States via the 14th Amendment, Kennedy says this in response to Flores’s contention: "We agree with respondent . . .  that Congress can enact legislation under §5 enforcing the constitutional right to the free exercise of religion. . . .  Congress’ power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), that the ‘fundamental concept of liberty embodied in [the Fourteenth Amendment’s Due Process Clause] embraces the liberties guaranteed by the First Amendment.’." (521 U.S. 507, Kennedy’s Part III-A). So the free exercise clause is definitely incorporated, according to the majority, as well as according to those dissenting. So the majority’s entrenched rejection of free exercise claims is not due to an overt rejection of free exercise incorporation.

So the Court is not explicitly overturning the incorporation of free exercise. But the Court may be exercising other mechanisms to nullify free exercise incorporation, so that its un-incorporation process is covert, and less likely to elicit public outrage.

In addition to the due process clause, Flores also claimed the equal protection clause. His lawyers essentially claimed that through the RFRA, Congress was able to remedy and prevent discrimination against "religious liberty" in the same way that it remedied and prevented racial discrimination, based on the 14th Amendment §1 equal protection clause. 10 At the oral arguments, arguing on Flores’s side for the defense of the RFRA, Walter Dellinger, acting solicitor general for the Clinton administration, "emphasized what the Justice Department believed was the most important aspect of the bill, that it protected minority religions that were not as ‘politically connected’ as the mainstream religions. . . .  He added that RFRA was the only way to protect minority religions and prevent larger religions from getting preferential treatment. ‘Congress was concerned about marginal religious groups. What RFRA says is, everyone gets the same treatment–whether you’re powerful, traditional or marginal.’". 11

In order to get a solid understanding of what the Court is doing in its Boerne decision, it’s critical to notice that Flores is defending Congress’s power to create the RFRA by pointing (i)to a nexus between §5 and the free exercise clause via the due process clause, and (ii)to a nexus between §5 and the free exercise clause via the equal protection clause. 12 But Flores’s side in this case says practically nothing about a nexus via the privileges or immunities clause. On its face, this may seem odd. According to a reasonable reading of §1, "privileges or immunities" are inherently more fundamental than "due process" or "equal protection". This is because common sense demands that in a secular social compact, "privileges or immunities" would be little more than a synonym for unalienable Rights. Any reasonable person would assume that "privileges or immunities of citizens of the United States" would include secular government’s protection of unalienable Rights. Protection of unalienable Rights inevitably includes protection of every citizen’s life, liberty, and property. If privileges or immunities has a weak and shriveled definition, then so will due process and equal protection. Common sense says that Flores made a big mistake in relying so heavily on the latter two clauses, rather than the former. Even so, it’s the supreme Court’s job to resurrect justice from conflicts. If they get so lost in the weeds that they fail to do that, then they have failed to do their jobs, and are guilty of malfeasance, misfeasance, or nonfeasance. If Flores didn’t bring it up, then the Court itself should have defined privileges or immunities in terms of unalienable Rights, and made that the foundation for their decision. They could have voided the RFRA and still rendered justice in this case. But they voided the RFRA and never made it out of the weeds. — Common sense says that "privileges or immunities" refer to basic rights under the Constitution. Equal protection merely says all citizens are equal in such basic rights. Due process merely says that standard legal procedures will always be used in protection of such basic rights. But if privileges and immunities is a shriveled, weak, and pathetic shadow of unalienable Rights, then equal protection and due process are also shriveled, weak, and pathetic. Equal protection and due process are secondary. Privileges and immunities are primary. The latter establish the foundation upon which the other two have meaning. Section 5 merely indicates that Congress will do whatever is necessary to protect such privileges and immunities.

The Court’s definition of "privileges or immunities" is shriveled, weak, and pathetic, as well as a violation of common sense, as a result of its decision in the Slaughterhouse Cases (1873). To fully understand what the Court did in Boerne, it’s critical to understand the 14th Amendment, especially §1 and §5. To get this understanding, it’s crucial to understand the Slaughterhouse Cases.

As was common in many States at the time, the State of Louisiana passed a law that created a monopoly in slaughterhouse operations in New Orleans. The company incorporated by way of the law was privately owned, but the law "required that all butchering of animals in New Orleans be done in its facilities. . . . Dissatisfied citizens [(especially owners of existing slaughterhouses)] perceived such transactions to confer illicit special privileges on the influential few at the expense of the rest of the people." Butchers who were not owners of the monopoly slaughterhouse business "filed a petition in the . . .  state court for an injunction . . .  to bar . . .  [the monopoly] . . .  from interfering with . . .  [their] business". The petition was based on the 14th Amendment §1, which "forbade states from enforcing ‘any law which shall abridge the privileges or immunities of citizens of the United States". The petition claimed that among these "privileges or immunities . . .  was the right to labor freely in an honest avocation". The case went to the State supreme Court. "The butchers’ lawyers argued that the [slaughterhouse] law . . .  violated . . .  the Fourteenth Amendment because it deprived them of property rights . . .  for the private gain of monopolists." The butchers appealed to the general supreme Court. 13

"The Republican party . . .  had framed the Thirteenth, Fourteenth, and Fifteenth Amendments in a political struggle that turned upon the future place of African-Americans in American society. . . .  Yet at the same time the Republicans were committed to maintaining the essentials of the federal system. The primary responsibility for governing relationships among Americans and for protecting their rights from infringement by others would remain with the states, they had insisted." 14

"Republicans tried to reconcile the two commitments [(of {a}integrating African-Americans into full citizenship and {b}maintaining some semblance of the confederate republic)] by framing laws and constitutional amendments that authorized the national government to intervene when the states themselves infringed rights or failed to protect them." This gave rise to the enforcement clauses, 13th Amendment §2, 14th Amendment §5, and 15th Amendment §2. "[T]hose laws and amendments carefully avoided making black Americans the special object of protection. They guaranteed the rights of all Americans equally." — But what was at issue in the Slaughterhouse Cases was not specifically these two commitments, but rather a monopolistic health law of a type not uncommon in many States at the time. 15

"A bare majority ruled that the Privileges and Immunities Clause did not protect such fundamental rights as the right to labor. . . .  [T]he majority opinion . . .  concluded that ‘the one pervading purpose’ behind the Civil War Amendments was to secure the freedom of black Americans, not to expand or add protection for the rights of whites." Evidently the Court’s motivation in formulating this opinion was fear of being overwhelmed by privileges-or-immunities-based litigation. If it acknowledged the face value meaning of the privileges or immunities clause, "it could expect similar appeals whenever any person believed police regulation denied basic rights." 16

In order to rule in this manner, the majority relied on the concept of State’s rights. It claimed that the full meaning of privileges or immunities applied to "citizens of the United States", but not to citizens of the States. In essence, the majority was claiming that the general government had a radically different subject matter jurisdiction from the States. The majority opinion insisted that the "term ‘privileges or immunities of citizens of the United States’ was meant to differentiate between those rights associated with state citizenship and those associated with United States citizenship . . .  The Fourteenth Amendment forbade states only from abridging the latter." 17

"Since the foundation of the Union the states had been conceded to have final authority over such basic rights as the right to labor . . .  With that right, the Fourteenth Amendment had nothing to do. To hold otherwise, [Justice] Miller explained, would make ‘this court a perpetual censor upon all legislation of the states, on the civil rights of their own citizens,’ authorized to nullify any law it believed violated those rights". 18

This unmasks the disease at the root of many of our problems. Any social compact, of any kind, is mandated to have a jural society. This is because every human being, without exception, is mandated to execute justice against delicts. The "right to labor freely in an honest avocation" is an unalienable Right. No social compact, no government, of any kind, can lawfully exist under the pretense that human agents of such compact / government have somehow graduated from this duty to execute justice against delicts. It is incumbent upon every human organization, no matter what its purpose or function, to acknowledge this global mandate, and to enfranchise some kind of jural society, even if such jural society is maximally deferential to some external jural society. — In the name of "federalism", i.e., the pretense to preserving the confederate republic, the supreme Court in the Slaughterhouse Cases assumed Cain’s posture: "Am I my brother’s keeper?". The global answer: When it comes to bloodshed, absolutely. When it comes to providing a free lunch, only if you volunteer to do so. Since bloodshed and delict are equivalent, and since delicts pertain to property, and only to property, the general government has an absolute duty to protect the property right known as "labor", even if it never has original jurisdiction over such subject matter. By understanding that the general government is a secular social compact, and so are the States, "federalism", i.e., the confederate republic, is preserved without the prospect of overwhelming litigation. — The claim that "the Fourteenth Amendment was designed to secure the rights of black Americans alone" is absolute foolishness. The debates over the framing of the 14th Amendment "suggested a vague but general belief that all Americans, white and black, had certain fundamental rights that had been violated in the interest of slavery". 19 — To claim that it’s only for blacks is to violate equal protection for "all citizens". — The Slaughterhouse Cases have never been overruled. They essentially turned the privileges or immunities clause into a nullity. That’s precisely what the supreme Court did to the free exercise clause via Smith.

The strategy that the Court has taken to defend the mega-state against the feared parade of horribles is not so much to roll back free exercise incorporation, as to turn the free exercise clause into a nullity. 20 If the incorporation doctrine furthers the foundational objective of secular government to protect rights, then the incorporation doctrine is a good thing. It has been good in forcing States to conform to the standard set by the Bill of Rights. 21 But now this trend is being reversed because of the majority’s fear of the parade of horribles.

In order to understand fully what the Court did in Boerne, it’s also crucial to understand the history behind §5. So we’ll look at that next. But it’s also important to remember that this case is about zoning. — Under the jurisprudence that derives from the investigation, zoning is lawful only in a religious social compact, and not under the direct jurisdiction of a secular social compact. That’s because prior consent to zoning laws is a necessary prerequisite to their being lawful. No such unanimous consent is even remotely likely under a secular social compact. Secular government assumes such prior consent without bothering to procure it, and it’s usually considered a crime malum prohibitum to refuse to acquiesce.

(b)RFRA relied on 14th Amendment §5:

Now that the basic nature of the 14th Amendment has been introduced, and now that we’ve examined the two §1 clauses that Flores’s team cited in defense of the RFRA, it’s important to look at Boerne’s §5 offense and Flores’s §5 defense. 22 Flores and Boerne disagreed about the extent of the power that 14th Amendment §5 gave to Congress. They agreed that §5 was "‘a positive grant of legislative power’ to Congress" (521 U.S. 507, Kennedy’s Part III-A). In other words, §5 gave Congress the power to pass laws that overrode State laws that violated §1, and no one disagreed with that proposition. But the litigants disagreed about what constituted "appropriate legislation". Based on a broad range of historical evidence, Justice Kennedy showed what the Court’s limits on this legislative enforcement power are. According to the majority opinion, "[a]s broad as the congressional enforcement power is, it is not unlimited." (Oregon v. Mitchell; opinion of Black, J.). The majority agreed with Flores that "Congress can enact legislation under §5 enforcing the constitutional right to the free exercise of religion." (521 U.S. 507, Kennedy’s Part III-A). But the majority also made it clear that RFRA went beyond what they considered "appropriate legislation".

To appreciate where the Court drew the line on "appropriate legislation", it’s important to understand §5 within the context of the Court’s early treatment of §5. The most important early treatment of it was in the Civil Rights Cases (1883).

Congress passed a Civil Rights Act in 1875. In the Civil Rights Cases the Court nullified crucial provisions of the Civil Rights Act, based on the Court’s posture towards §5. Here, we’ll show that the Court gave a strained reading of §5 in 1883, and we’ll show that that precedent led to a similar strained reading in 1997. By nullifying important provisions of the Act in 1883, the Court laid the legal foundations for Black Codes, Jim Crow, the separate-but-equal doctrine, and, in short, a century of oppression from which we are still recovering. We’ll show that by nullifying both the compelling interest test (via Smith) and RFRA (via Boerne), 23 thereby nullifying the free exercise clause, the Court has laid the legal foundation for a police state that operates under the pretense that government is a DisneyLand-like sugar-daddy.

The Civil Rights Act of 1875 presumed to make it illegal throughout all States and "federal" territories for anyone to deny hotel, public transportation, theater attendance, etc., to anyone else based on the latter’s race or skin color. The Civil Rights Cases were five cases in which people were seeking remedies for such racial discrimination through this Civil Rights Act. The supreme Court treated these cases collectively with a single opinion in 1883.

The crucial question in these cases was, "Has congress constitutional power to make such a law?" (109 U.S. 3, Bradley’s majority opinion). "The power is sought, first, in the fourteenth amendment" (109 U.S. 3, Bradley’s majority opinion). Specifically, Congress was relying on §1 of the 14th Amendment. The big problem with relying on §1 is that it pertains to States. It says, "No State shall make or enforce . . . ". "It is state action of a particular character that is prohibited." (109 U.S. 3, Bradley’s majority opinion). "Individual invasion of rights is not the subject-matter of the amendment." (109 U.S. 3, Bradley’s majority opinion). According to Bradley, to keep the amendment from being void on its face, "the last section of the amendment invests congress with power to enforce it by appropriate legislation." (109 U.S. 3, Bradley’s majority opinion). The amendment

does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation. . . .  It does not authorize congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws . . .  when these are subversive of the fundamental rights specified in the amendment . . .  [L]egislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. . . .  [S]o in the present case, until some state law has been passed, or some state action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against state laws and acts done under state authority. . . .  [L]egislation . . .  should be adapted to the mischief and wrong which the amendment was intended to provide against. . . .  Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. (109 U.S. 3, Bradley’s majority opinion)

The scope of legislation that is the lawful outgrowth of the Constitution cannot be municipal, i.e., cannot pertain to the full range of religious police powers. In our view, they are necessarily confined to appertain to secular police powers. But in the view of the Court, then and now, the scope of legislation is merely precluded – in the "federalist" mentality – from overlapping the "traditional prerogatives" of the State.

According to Justice Bradley’s majority opinion in the Civil Rights Cases, the

law . . .  makes no reference to any supposed or apprehended violation of the fourteenth amendment on the part of the states. . . .  [I]t steps into the domain of local jurisprudence . . .  The . . .  implication of a power to legislate in this manner is based upon the assumption that if the states are forbidden to legislate or act in a particular way on a particular subject, and the power is conferred upon congress to enforce the prohibition, this gives congress power to legislate generally upon that subject, and not merely power to provide modes of redress against state legislation or action. The assumption . . .  is repugnant to the tenth amendment (109 U.S. 3, Bradley’s majority opinion).

The majority opinion in the Civil Rights Cases (1883) indicates that Congress relied secondarily on the 13th Amendment to frame the Civil Rights Act of 1875. This amendment abolished slavery. Like the 14th and 15th Amendments, it gave "congress power to enforce the amendment by appropriate legislation". Unlike 14th Amendment §1, this amendment pertains not merely to the states, but to all territories of the general government. It’s easy to assume that the 13th Amendment was not limited to the literal abolition of slavery. Justice Bradley treated this assumption as two related propositions: (prop 1)"[I]t is assumed that the power vested in congress to enforce the article [(13th Amendment)] by appropriate legislation, clothes congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States; and upon this assumption it is claimed [(prop 2)] that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of public amusement" (109 U.S. 3, Bradley’s majority opinion). — If both propositions are true, then it’s true that congress had the power to pass the Civil Rights Act of 1875. If either is false, then Congress had no such power. If the first is true but the second is false, then congress lacks such power. Since the second depends on the first, if the first is false, the second is automatically false.

The problem that needed to be solved by the Civil Rights Act related directly to property. If we had no belief in private property, then we would assume that all property is public. If all property were public, then there would be no obstacle to the act or to Congress’s power to pass it. But we do emphatically believe in private property; so there are inevitable obstacles presented by those who own such inns, conveyances, etc. — When the War Between the States was over, and the slaves were newly freed, they owned practically nothing other than their own bodies. People who owned land and other means of production as private property could either conspire to keep the ex-slaves in economic bondage, even if they were no longer victims of involuntary servitude, or use their property charitably towards those who had practically nothing. If the property owners conspired to keep the ex-slaves in economic bondage, then the ex-slaves would be clothed with the "badges and incidents of slavery". This economic bondage is precisely what happened. A hundred forty years after the end of slavery, many Americans of African-American descent are still claiming to be clothed with the "badges and incidents of slavery". Again, if we didn’t believe in private property, this problem could have been addressed then, even if the War proceeded precisely as it did. But private property is basic to human nature. In order to address both the elimination of the "badges and incidents of slavery" and the acknowledgment of private property as basic, simultaneously, the confederate republic, prior to the War Between the States, would have taken an approach to the elimination of slavery that recognized all these basic issues. The approach would have been (1)adopt the "Civil War Amendments" before war; (2)allow the slave States to secede or not, as they saw fit; and (3)invade the slave states (including those that seceded) executing justice against perpetrators of involuntary servitude (meaning that they would typically lose all their property as punishment for perpetration of delicts, and such property would be turned over to the ex-slaves. 24 Of course the American people lacked the collective will to take this approach. Instead, we have experimented with the elimination of "badges and incidents of slavery" by violating private property rights. It cannot continue much longer without system failure. It’s critical for the general government to acknowledge that it has responsibility over delicts, globally, but that violation of property rights is itself perpetration of delicts. If government continues violating such rights, it continues being criminal. All the Civil Rights acts since the Civil Rights Act of 1875 deserve repudiation similar to that exacted against the 1875 Act, for the sake of fully restoring private property. Congress had no more lawful power to enact the later Acts than it did the 1875 Act. Ever since, it’s merely been trying to rectify its pre-1860 failings, even though the opportunity for justice under human law in this arena has long passed.

By stating clearly that §1 pertained to the States, and not directly to citizens of the States, Bradley’s opinion makes it clear that §5 pertains to the States, and not directly to citizens of the States. The Civil Rights Act of 1875 tried to do a good thing – get rid of the "badges and incidents of slavery" – but it tried to do this in a way that (i)violated private property rights; and (ii)would permanently damage the confederate republic by creating a national consolidation instead. By defining the parameters of the 14th Amendment §5, Bradley made the following statements that were very pertinent to Boerne: (i)The 14th Amendment "does not invest congress with power to legislate upon subjects which are within the domain of state legislation". (ii)The 14th Amendment is designed "to provide modes of relief against state legislation". (iii)It’s designed "to provide modes of redress against state laws . . .  when these are subversive of the fundamental rights specified in the amendment". (iv)"Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property". — These are the conceptions of the Court.

If the general and State governments were lawful secular social compacts, these six items would be different, because police power would not have the fuzzy definition used then and now by the Court. These items would then appear like this: (i)The 14th Amendment, if taken literally, at face value, and consistently with the investigation, does "invest congress with power to legislate upon subjects which are within the domain of state legislation", as long as the general legislation pertains to delicts, and only to delicts, and as long as the general legislation acknowledges that it lacks original jurisdiction within the States. (ii)The 14th Amendment, if taken literally, at face value, and consistently with the investigation, is designed "to provide modes of relief against state legislation" when such State legislation either causes the State to perpetrate bloodshed against its denizens and / or citizens, or causes the State to fail to execute justice against perpetrators of bloodshed within the State’s geographical jurisdiction. (iii)The 14th Amendment, if taken literally, at face value, and consistently with the investigation, is designed "to provide modes of redress against state laws . . .  when these are subversive of the fundamental rights specified in the amendment". Seen through this lens, the "fundamental rights" of the 14th Amendment are unalienable Rights, i.e., property rights. (iv)If the 14th Amendment is taken literally, at face value, and consistently with the investigation, then "[L]egislation [produced via §5] must necessarily . . .  be directed to . . .  correction". (v)If the 14th Amendment is taken literally, at face value, and consistently with the investigation, then "[L]egislation . . .  should be adapted to the mischief and wrong". (vi)If the 14th Amendment is taken literally, at face value, and consistently with the investigation, then "Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty, and property". Such legislation that covered "the whole domain of rights" would be inherently invalid under a secular social compact because it would generate religious police powers that are inherently invalid unless exercised by a religious social compact, which the general government is not.

Anything that Congress does under §5 to expand its enforcement of the global mandate against bloodshed is lawful, even if it violates traditional views of State’s rights, as long as it recognizes that it more-than-likely doesn’t have original jurisdiction with regard to delicts. Anything that Congress does under presumed §5 authority that is not prompted by this global mandate, and is outside the bounds of the professed consensual nature of the American social compact, is itself an act of bloodshed, and turns Congress into a criminal.

While the Civil Rights Act of 1875 was aimed at eliminating "badges and incidents of slavery" perpetrated by non-governmental private property-owners, RFRA was aimed at eliminating "incidental burdens" on religion perpetrated by governmental entities. 25 The "badges and incidents of slavery" that came before the Court in the Civil Rights Cases (1883) were instances of private property-owners refusing to do business with "a colored person". Given the definition of religion that derives from the investigation, the "incidental burdens" on religion that came before the Court in Boerne v. Flores (1997) were burdens perpetrated by every tier of secular government. The Court was right to nullify the Civil Rights Act of 1875, for the sake of preserving the compact theory of government, and with it, the concept of government by consent. But the Court’s rejection of RFRA in Boerne is nowhere near as clear-cut.

Because Congress designed the Civil Rights Act of 1875 to be applicable to ordinary people, the Act went beyond being remedial or preventive legislation, and was instead substantive. In other words, it presumed to change the Constitution without a constitutional amendment. So the Court marked the guilty provisions as unconstitutional. When Congress designed the RFRA, it didn’t make the same mistake that it had in 1875. 26 The RFRA was applicable to governmental entities only. But the question over which the litigants in Boerne differed was whether or not Congress had exceeded its §5 authority by creating substantive legislation in RFRA, even if such legislation did apply explicitly to governmental entities and not to private people.

The RFRA’s "mandate applies to any ‘branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States,’ as well as to any ‘State, or . . . subdivision of a State.’ §2000bb 2(1). 27 The Act's universal coverage is confirmed in §2000bb 3(a), under which RFRA ‘applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment].’" (521 U.S. 507, Kennedy’s Part II). This is Justice Kennedy’s acknowledgment that RFRA had an in personam jurisdiction that was limited to governmental entities. On its face, this might seem to be a problem, since §1 indicates clearly that it and §5 apply only to States (including local manifestations of State law in "local and municipal ordinances"), and they therefore have no apparent application to the general government. But the fact is that Congress doesn’t need the 14th Amendment to create statutes applicable to the general government, because it has the rest of the Constitution as authority to do that. The problematical aspect of RFRA was its applicability to the States. Kennedy acknowledged that "Congress relied on its Fourteenth Amendment enforcement power in enacting the most far reaching and substantial of RFRA's provisions, those which impose its requirements on the States." (521 U.S. 507, Kennedy’s Part III-A)

As already mentioned, Boerne and Flores agreed that §5 was "‘a positive grant of legislative power’ to Congress" (521 U.S. 507, Kennedy’s Part III-A). But "The parties disagree over whether RFRA is a proper exercise of Congress’ §5 power ‘to enforce’ by ‘appropriate legislation’ the constitutional guarantee that no State shall deprive any person of ‘life, liberty, or property, without due process of law’ nor deny any person ‘equal protection of the laws.’" (521 U.S. 507, Kennedy’s Part III-A). Boerne argued that Congress did not have the authority to enact RFRA under §5 because RFRA was substantive and not remedial / preventive. 28 But Flores claimed that Congress could use this 14th Amendment §5 enforcement power 29 to eliminate "laws which are enacted with the unconstitutional object of targeting religious beliefs and practices", and could do so simply by invalidating any "law which imposes a substantial burden on a religious practice unless it is justified by a compelling interest and is the least restrictive means" possible (521 U.S. 507, Kennedy’s Part III-B). But the Court maintained "that ‘[a]s broad as the congressional enforcement power is, it is not unlimited.’ Oregon v. Mitchell." (521 U.S. 507, Kennedy’s Part III-A).

All parties agreed that there is a nexus between the 1st Amendment’s free exercise clause, §1’s due process and equal protection clauses as they pertain to the States, and §5’s power to enforce against the States by "appropriate legislation". But the litigants disagreed about the nature of "appropriate legislation". Upon what grounds did they disagree? RFRA was certainly not an act by Congress of trying to create §5 legislation presumably enforceable against non-governmental entities. 30 So where did Boerne get off claiming that RFRA was substantial instead of remedial / preventive, and therefore an attempt at changing the Constitution without an amendment?

To venture into addressing this issue, Kennedy cited Ex Parte Virginia (1879). "‘Whatever legislation is appropriate, . . .  adapted to carry out the objects the amendments have in view, . . .  if not prohibited, is brought within the domain of congressional power.’ Legislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy previously reserved to the States.’" (521 U.S. 507, Kennedy’s Part III-A) — This is broad. Katzenbach v. Morgan is also broad because that case held that "Congress . . .  need have only a rational basis for its laws". 31

We can understand the Court’s enthusiasm for rejecting RFRA to preserve "federalism". 32 In other words, "The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]". 33 We’re convinced that the Court’s interpretation of the 14th Amendment has gone a long way towards turning the States into administrative provinces of the nationally consolidated government. Because of the necessity for preserving the State jurisdictions after such jurisdictions were so thoroughly damaged by the "Civil War" national consolidation, it was necessary to make some extraordinary efforts at preserving such State jurisdictions. So, generally speaking, the generation of leaders that ratified the 14th Amendment believed that "The power to ‘legislate generally upon’ life, liberty, and property, as opposed to the ‘power to provide modes of redress’ against offensive state action, was ‘repugnant’ to the Constitution." (521 U.S. 507, Kennedy’s Part III-A-2).

(c)§5 power is only preventive or remedial:

Although everyone agrees that Congress has an enforcement power under §5, the parameters of this power have never been particularly clear. Citing the Civil Rights Cases (1883), Justice Kennedy indicated that "The remedial and preventive nature of Congress' enforcement power, and the limitation inherent in the power, were confirmed in our earliest cases on the Fourteenth Amendment. . . .  The power to ‘legislate generally upon’ life, liberty, and property, as opposed to the ‘power to provide modes of redress’ against offensive state action, was ‘repugnant’ to the Constitution. . . .  Although the specific holdings of . . .  early cases might have been superseded or modified, . . .  their treatment of Congress' §5 power as corrective or preventive, not definitional, has not been questioned." (521 U.S. 507, Kennedy’s Part III-A-2). According to Kennedy, "Recent cases have continued to revolve around the question of whether §5 legislation can be considered remedial." (521 U.S. 507, Kennedy’s Part III-A-2)

Since World War II, Congress has used its §5 authority on several different occasions. "Congress . . .  used its section five authority to enact federal antidiscrimination legislation such as the 1964 and 1990 Civil Rights Acts and the 1965 Voting Rights Act." 34 In South Carolina v. Katzenbach (1966) the Court "sustained the constitutionality of the Voting Rights Act of 1965. . . .  In the Voting Rights Act, Congress relied on its powers under section 2 of the Fifteenth Amendment, which authorizes it by appropriate measures to enforce the amendment’s prohibitions on racial discrimination in voting.". 35 — Since the wording in 15th Amendment §2 is the same as that in 14th Amendment §5, and since the right to vote is subject to the equal protection clause, any reference to 15th Amendment §2 in these voting rights cases is likely to be equivalent to a reference to 14th Amendment §5. — In South Carolina v. Katzenbach (1966), "South Carolina . . .  asserted that Congress’s section 2 power authorized nothing more than legislation forbidding violations of the Fifteenth Amendment in general terms, with remedies . . .  left to the Courts. Chief Justice Earl Warren’s opinion rejected . . .  these challenges.". 36

"With respect to Congress’s section 2 power [in creating the Voting Rights Act of 1965], the Court relied on the classic statement of congressional legislative power in McCulloch v. Maryland (1819). Legitimate ends not banned by the Constitution may be pursued through all appropriate means." 37 — "South Carolina v. Katzenbach served as an important precedent in Katzenbach v. Morgan (1966). The breadth of legislative discretion granted Congress in enforcing the Fifteenth Amendment paved the way for similar treatment of Congress’s power under the Fourteenth Amendment. In Morgan, the Court rejected New York’s argument that Congress may abrogate state laws only if they conflict with the Fourteenth Amendment. These cases, along with Jones v. Alfred H. Mayer Co. (1968), contributed to a major revitalization of Congress’s power to enforce the Civil War Amendments against racial discrimination." 38

When teamed with McCulloch v. Maryland, it appears that Congress’s §5 authority under South Carolina v. Katzenbach (1966) is broad. But Kennedy’s view in Boerne is more constrained. He says, "Congress’ power under §5 . . .  extends only to ‘enforc[ing]’ the provisions of the Fourteenth Amendment. The Court has described this power as ‘remedial,’ South Carolina v. Katzenbach" (521 U.S. 507, Kennedy’s Part III-A). Later in his opinion, he says that "After South Carolina v. Katzenbach, the Court continued to acknowledge the necessity of using strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination." (521 U.S. 507, Kennedy’s Part III-A-2).

In Katzenbach v. Morgan (1966) the Court went further in defining the parameters of §5. In this case, the Court "sustained an amendment to the 1965 Voting Rights Act . . .  Justice . . .  Brennan, writing the opinion of the Court, interpreted section five as an affirmative grant of discretionary power to Congress to determine ‘whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’ . . .  Brennan also implied that Congress had independent authority under section five to define the ‘substantive scope’ of rights protected by the Fourteenth Amendment.". 39 — "Speaking for the majority, . . .  Justice William Brennan held that the earlier precedent [(Lassiter v. Northampton Co. Board of Elections, 1959)] was not the measure of congressional . . .  power to enforce the Fourteenth Amendment’s equal protection guarantee. Congress, declared Brennan, need have only a rational basis for its laws". 40 — Even though Congress’s §5 power appears to be broad under these two 1966 cases, "since Morgan, the Court has never directly established whether Congress has the substantive power to define the rights protected by the Fourteenth Amendment as suggested in Brennan’s majority opinion" in Morgan. 41 Kennedy’s opinion in Boerne clearly casts aspersions on such "substantive scope". He says, "Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law. In Oregon v. Mitchell, . . .  a majority of the Court concluded Congress had exceeded its enforcement powers by enacting legislation lowering the minimum age of voters from 21 to 18 in state and local elections. The five Members of the Court who reached this conclusion explained that the legislation intruded into an area reserved by the Constitution to the States. . . .  [T]he Constitution ‘reserves to the States the power to set voter qualifications in state and local elections’)" (521 U.S. 507, Kennedy’s Part III-A-3). — In our view, the "power to set voter qualifications in state and local elections" is certainly something "reserved to the States", as long as it doesn’t carry "badges" of slavery or other violations of equal protection. The general government has the power to eliminate such "badges" as they pertain to public property and practices. It does NOT have the power to eliminate such "badges" as they relate to private property.

Although there have been other cases since Oregon v. Mitchell (1970) that have touched the issue of Congress’s §5 authority tangentially, §5 was the core issue in Boerne. Kennedy indicated that Flores "contends . . .  that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment’s Due Process Clause, the free exercise of religion . . . . It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law’s effects accords with the settled understanding that §5 includes the power to enact legislation designed to prevent as well as remedy constitutional violations. It is further contended that Congress’ §5 power is not limited to remedial or preventive legislation." (521 U.S. 507, Kennedy’s Part III-A) — The remedial and preventive are non-controversial. But when the Flores team claims that in designing RFRA, "the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law’s effects accords with the settled understanding that §5 includes the power to enact legislation designed to prevent as well as remedy constitutional violations", it invites scathing ridicule from Boerne’s team. 42 When Flores’s team "contended that Congress’ §5 power is not limited to remedial or preventive legislation", it invited exponentially scathing ridicule.

"[One of Boerne’s lawyers, Marci] Hamilton characterized the Religious Freedom Restoration Act as a ‘hostile takeover’ of the free exercise clause, a ‘prophylactic law’ not designed to remedy a known harm, but to ‘overturn a Supreme Court decision.’ Hamilton pointed out that the law was not remedial because Congress had not proven that government was hostile toward religion." 43 — This failure by both Congress and Flores’s team to show that RFRA was designed to remedy a known harm is crucial to their failure to prove their case. 44 The harm that RFRA could potentially address is the failure by all the secular governments in this country to properly and reasonably define the distinction between lawful secular police powers and religious police powers. This failure leads to "incidental burdens" on everyone’s religion.

Kennedy’s opinion indicated that in contrast to the Voting Rights Act, "RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years." (521 U.S. 507, Kennedy’s Part III-B). This may be true about the legislative record, but if the supreme Court had a genuine interest in understanding government-sponsored bigotry, it would have defined "religious" rationally instead of insisting on a mythological definition of the term. But "the emphasis of the [RFRA legislative] hearings was on laws of general applicability which place incidental burdens on religion. Much of the discussion centered upon anecdotal evidence of autopsies performed on Jewish individuals and Hmong immigrants in violation of their religious beliefs" (521 U.S. 507, Kennedy’s Part III-B). If the RFRA legislative hearings and the Boerne Court had insisted on a rational definition of "religious", they would have looked themselves squarely in the mirror and seen that most of the positive law in the general and State governments are religious, meaning that they are establishment of a witch’s brew of secular humanism and nominal Christianity. The Court has a pathetic definition of religion. If it had a robust definition, it would readily recognize that the "federal" government is violating religions across the board.

(d)Congress lacks §5 power to change substance:

The bundle of issues that motivated the Court to reject RFRA, and with it, Flores’s claim to a building permit, included the belief that Congress had crossed the boundary from remedy / prevention to substantial modification of the Constitution. 45 In essence Kennedy and company were responding to Brennan’s opinion in Katzenbach v. Morgan (1966) by claiming that Congress had no §5 "substantive scope", because §5 only had preventive / remedial scope. Rational basis, by itself, wasn’t good enough. It wasn’t good enough in the Civil Rights Cases (1883), and it wouldn’t be good enough in Boerne. In other words, according to Kennedy, Congress has the power to enforce §1 through remedial legislation, but not to modify the "substance" of the Amendment, where the Court is the self-anointed interpreter of what constitutes "substance". One of Boerne’s lawyers said in oral arguments that RFRA was "a constitutional amendment disguised as a law". 46 Numerous places in this inventory – articles pertinent to money and taxation, for instance – show the myriad ways that Congress and the Court have worked together to change the substance of the Constitution. In this instance the Court has refused to cooperate with Congress’s adventure into constitutional reconstruction, not because RFRA is more wrong than other acts, but because the Court considers RFRA unfashionable, and probably also because the Court lacks the jurisprudential equipment to make RFRA work.

"An extensive conversation about past abuses of religious liberty from such neutral laws was absent from the RFRA conversation, allowing Justice Kennedy to emphasize that RFRA was a substantive exercise of congressional power because there wasn’t any evidence that Congress was attempting to remedy religious intolerance by state and local governments." 47

In essence, the supreme Court used Boerne v. Flores to limit Congress to the enforcement of the Court’s conception of "substantive rights". The Court thereby crippled Congress from being able to enforce its own conception. — The Court clearly and obviously established "substantive rights" in nullifying the privileges or immunities clause in the Slaughterhouse Cases. 48 The message apparently is that in the Court’s view, it’s OK for the Court to create "substantive rights", but if Congress wants to do that, it can only do it with the Court’s stamp of approval. It would be better for everyone if both of these governmental bodies adhered to reliable, lawful jurisprudence.

(e)Legislation that alters meaning isn’t enforcing:

Kennedy makes a good point, but he should apply the point not merely to Congress, but also to the Court. He says, "If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be ‘superior paramount law, unchangeable by ordinary means.’ It would be ‘on a level with ordinary legislative acts, and, like other acts, . . .  alterable when the legislature shall please to alter it.’ Marbury v. Madison, . . . . Under this approach, it is difficult to conceive of a principle that would limit congressional power. . . .  Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V." (521 U.S. 507, Kennedy’s Part III-A-3). If Congress were the sole source of guilt on this front, then it might be OK for the Court to point blaming fingers at Congress. But there’s plenty of guilt to be shared. They’ve worked together to change the plain meaning of the money clauses, the commerce clause, and numerous other parts of the Constitution. But the Court has sometimes worked alone to usurp the Constitution. For example, they changed the plain meaning of the free exercise clause when they created the belief-action doctrine in Reynolds v. U.S.. The Court started trying to repair the damage they had done starting with Cantwell v. Connecticut. When Smith came along, they threw away all the advances they had made since Cantwell, and they returned to the belief-action distortion of the plain meaning. So Kennedy’s right when he says, "Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause." (521 U.S. 507, Kennedy’s Part III-A). He needs to be more forthcoming in acknowledging the Court’s sometimes lead role in the process of trashing the Constitution.

(f)Legislation must have congruence and proportionality:

We still haven’t gotten to the core of why RFRA was substantive, non-remedial, non-preventive legislation. 49 In the Civil Rights Cases it was obvious why the Civil Rights Acts of 1875 were substantive: Because they presumed to impose on private people, rather than upon States. In Oregon v. Mitchell (1970) it was obvious why the Court overruled Congress’s passage in 1970 of amendments to the 1965 Voting Rights Act: Because Congress mandating that States set their voting age to eighteen was substantive, rather than remedial / preventive. But it’s still not obvious why the Court ruled RFRA to be substantive, rather than remedial / preventive. One of the reasons, if not the reason above all others, was that the Court saw a lack of congruence and proportionality between the harm to be remedied or prevented, and the remedy / prevention constructed by Congress.

To explain why the Court found RFRA substantive, 50 Kennedy presented an overview of the congressional debates pertinent to drafting the 14th Amendment:

The Joint Committee on Reconstruction of the 39th Congress began drafting what would become the Fourteenth Amendment in January 1866. . . .  Members of Congress from across the political spectrum criticized the [proposed] Amendment, and the criticisms had a common theme: The proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. . . .  Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. . . .  Republican Representative Robert Hale . . .  warned that under it ‘all State legislation, in its codes of civil and criminal jurisprudence and procedures . . .  may be overridden, may be repealed or abolished, and the law of Congress established instead.’ . . .  Senator William Stewart of Nevada . . .  stated the Amendment would permit ‘Congress to legislate fully upon all subjects affecting life, liberty, and property,’ such that ‘there would not be much left for the State Legislatures,’ and would thereby ‘work an entire change in our form of government.’ . . .  Some radicals, like their brethren ‘unwilling that Congress shall have any such power . . .  to establish uniform laws throughout the United States upon . . .  the protection of life, liberty, and property,’ . . .  also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities." (521 U.S. 507, Kennedy’s Part III-A-1)

The people who drafted the 14th Amendment wanted the nation to be more nationally consolidated than it had been prior to the War Between the States, but not too much more. They wanted to welcome the ex-slave States back into the Union as though they had never done anything wrong, and as though it was perfectly OK for them to continue imposing the "badges" of slavery, as long as actual slavery was gone.

[T]he House voted to table the proposal . . .  The measure was defeated "chiefly because many members of the legal profession s[aw] in [it] . . . a dangerous centralization of power," . . .  The Amendment in its early form was not again considered. Instead, the Joint Committee began drafting a new article of Amendment, which it reported to Congress on April 30, 1866. . . .  Section 1 of the new draft Amendment imposed self executing limits on the States. Section 5 prescribed that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." . . .  Under the revised Amendment, Congress’ power was no longer plenary but remedial. Congress was granted the power to make the substantive constitutional prohibitions against the States effective. Representative Bingham said the new draft would give Congress "the power . . .  to protect by national law the privileges and immunities of all the citizens of the Republic . . .  whenever the same shall be abridged or denied by the unconstitutional acts of any State." . . .  Representative Stevens described the new draft Amendment as "allow[ing] Congress to correct the unjust legislation of the States." . . .  ("This amendment of the Constitution does not concentrate power in the general government for any purpose of police government within the States; its object is to preclude legislation by any State which shall ‘abridge the privileges or immunities of citizens of the United States’ "). . . .  (statement of Rep. Garfield) ("The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]"). (521 U.S. 507, Kennedy’s Part III-A-1)

Excluding slavery, the people who framed and ratified the 14th Amendment wanted to maintain the "traditional prerogatives" of the States. They deliberately went out of their way to make Congress’s power under §5 remedial and preventive, not substantive.

The Court’s claim that RFRA is substantive relates directly to Flores’s failure to clearly specify the harm to be remedied / prevented, and to Flores’s contention that "Congress’ §5 power is not limited to remedial or preventive legislation" (521 U.S. 507, Kennedy’s Part III-A). Kennedy’s examination of the drafting process shows that Flores’s lawyers were wrong about this limitation on Congress’s §5 power. But part of Kennedy’s consolation to Flores was an admission that Flores’s team might have misread Katzenbach v. Morgan:

There is language in our opinion in Katzenbach v. Morgan, . . .  which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation . . .  As Justice Stewart explained in Oregon v. Mitchell, . . .  interpreting Morgan to give Congress the power to interpret the Constitution "would require an enormous extension of that decision’s rationale." (521 U.S. 507, Kennedy’s Part III-A-3)

Flores’s real problem was in failing to prove harm that needed prevention / remedy.

Kennedy claimed "there was no evidence of a ‘widespread pattern of religious discrimination in this country’ that would warrant such a far-reaching law". 51

While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. (521 U.S. 507, Kennedy’s Part III-A)

Even if Congress had provided ample evidence that there was real harm that RFRA was aimed at remedying or preventing, RFRA was still nevertheless vulnerable to being accused of being substantive due to the fact that it would in effect be establishing religions willy-nilly. 52 RFRA had the capacity to manufacture exemptions to neutral, generally applicable laws. RFRA had this capacity whenever a religion was "incidentally burdened". This establishment process was not central to Boerne’s case because Flores never presented meaningful evidence that a harm / "incidental burden" existed. Without an incidental burden the harm-exemption-establishment chain was broken. Even so, it’s important to understand that incidental burdens virtually never exist except when they are created by bad laws. A bad law is any law that creates a police power that is non-consensual. Bad laws exist so prolifically that from the investigation’s perspective, governments are perpetrating incidental harm against a multitude of religions. Since Kennedy and company saw this failure to articulate harm as adequate motive to repudiate RFRA, they should mark this inventory as such articulation of harm. 53

Kennedy says more about presenting proof of harm:

While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented. . . .  In contrast to the record which confronted Congress and the judiciary in the voting rights cases, RFRA’s legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry. The history of persecution in this country detailed in the hearings mentions no episodes occurring in the past 40 years. . . .  The absence of more recent episodes stems from the fact that, as one witness testified, "deliberate persecution is not the usual problem in this country." . . .  Rather, the emphasis of the hearings was on laws of general applicability which place incidental burdens on religion. . . .  It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress’ concern was with the incidental burdens imposed, not the object or purpose of the legislation. (521 U.S. 507, Kennedy’s Part III-B)

Here Kennedy gets lost in the weeds. If government damages someone’s property without intending to, the damaged party is nevertheless equally as damaged as he / she would be if government had malice. So whether the delict is intentional or "incidental" is tangential, not crucial. Whether the delict exists is the real issue. Admittedly, Flores and Congress both failed to prove the existence of such "incidental" delicts. But the fact that the Court failed to look any harder for them testifies to how callous the mega-state has become. The secular governments in this country constitute a proverbial bull-in-a-china shop. It is precisely the kind of brutish governance foreseen by those framers who spoke carefully about a confederate republic as opposed to a national consolidation, and who feared centralized government that was too far away from where people lived.

In response to the failure to prove harm, Kennedy says, "Remedial legislation under §5 ‘should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against.’ Civil Rights Cases" (521 U.S. 507, Kennedy’s Part III-B). Since Flores failed to prove harm, this statement from the Civil Rights Cases (1883) applies in Boerne. But the fact that harm exists even though Flores failed to prove it isn’t something the Court should ignore. Harm to religions is everywhere. It’s true that those happy with the state-religion – i.e., with the witch’s brew of secular humanism and nominal Christianity – generally ignore this multitude of "incidental" harms. Those who are not so happy with the state-religion, but who are convinced that preservation of the compact theory of government is important, owe a measure of "Thanks!" to the Court. The Court has preserved the compact theory to some extent by preserving a semblance of State’s rights. But there’s a big problem with this. The problem is that they’ve been preserving State’s rights at the expense of "The powers . . .  reserved . . .  to the people.". This is precisely what the pre-"Civil War" compact did by allowing States to legalize turning human beings into other people’s property.

Kennedy’s demand that there be proportionality and congruence between the harm and the remedy / prevention in order for §5 legislation to avoid crossing the boundary into substantive modification of the Constitution, is supported by the Court’s distaste for the compelling interest test mandated by RFRA. 54

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. (521 U.S. 507, Kennedy’s Part III-B)

This test clearly burdens the Court, at least in the Court’s view. So Kennedy is obviously including the burden on the Court in his calculation of proportionality and congruence. But this test has more problems in his view:

Claims that a law substantially burdens someone's exercise of religion will often be difficult to contest. . . .  Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "‘compelling interest’ really means what it says . . .  many laws will not meet the test. . . .  [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." Id. [Smith, 494 U.S.] at 888. (521 U.S. 507, Kennedy’s Part III-B)

Here Kennedy is quoting Scalia’s opinion in Smith. He’s essentially citing Scalia’s parade of horribles. 55 Regarding RFRA’s imposition of the compelling interest test on the States, Kennedy continues by saying,

This is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens. (521 U.S. 507, Kennedy’s Part III-B)

The "States’ traditional prerogatives and general authority to regulate for health and welfare of their citizens" is inherently unlawful, because the States are not lawfully religious social compacts. This is precisely why RFRA’s standard should be law within all secular social compacts. The "intrusion" is absolutely appropriate. The State’s "traditional prerogatives" stink, because they allow the State to exercise municipal authority that is lawful only under a religious social compact.

If the Court had a reasonable definition of religion, it would necessarily admit that the injuries are huge, and the harm is real. Because of the looming menace that the majority perceives – its feared parade of horribles – the majority claims that "RFRA’s most serious shortcoming . . .  lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." (521 U.S. 507, Syllabus). They clearly don’t understand the damage that needs to be remedied and prevented. They need to stop following the mob in doing evil long enough to see the evil that demands of them an immediate remedy. This evil is a black plague of government-sponsored repudiation of religions. If O’Connor’s demand to reinstate strict scrutiny in free exercise were to prevail, the majority is convinced that chaos would result. They must keep their teeth clinched and their fists taut against the rabble at the gate. — If this situation persists, and if history repeats itself, the result will be more Tower of Babel, and another collapse. — In the same way that the Court returned free exercise jurisprudence from the status quo before Smith to the status quo during the Reconstruction-era (i.e., belief-action doctrine), it is hereby returning congressional power from the status quo before RFRA to its Reconstruction-era status. 56 It is doing this in the name of State’s rights and "federalism", and is relegating the "powers . . .  reserved . . .  to the people" to oblivion, in the same way that the slave-era and the Reconstruction-era both did.

(g)Separation of Powers:

Last, but probably not least, of Kennedy’s objections to RFRA / Flores, was his separation of powers argument. 57 Since the Court and Congress conspired to allow the separation of powers doctrine to go totally defunct within administrative agencies, it’s difficult to take Court and Congress seriously when they use this doctrine against one another. Nevertheless this doctrine was fundamental to the compact theory of government that was developed by the framers; so it deserves acknowledgment by us, even though it’s clear that the Court only uses it when its fickle temperament compels it to.

Congress’s failure to prove in RFRA hearings that the act was designed to remedy / prevent a harm, combined with the fact that Congress specifically indicated that RFRA was prompted by Smith, leads one naturally to understand Smith to be the harm Congress was trying to fix. 58 So in effect Congress was setting itself up as a court of last resort, higher than the supreme Court, which, according to the face value Constitution, is the nation’s only court of last resort. Some lawyers were furious about this.

One of Boerne’s lawyers, Marci Hamilton, "contended that the law represented ‘the worst of legislative overreaching,’ which reflected Congress’ ‘brazen attempt to reinterpret’ the free exercise clause. Hamilton told the Court, ‘It certainly can’t get to the point where Congress gets to redefine the meaning of the Constitution instead of just enforcing it,’ adding that this would ‘shift the balance of power dramatically from the Court to Congress.’". 59 According to Kennedy’s recital of the 14th Amendment drafting process, the initial draft "departed from . . .  tradition by vesting in Congress primary power to interpret and elaborate on the meaning of the new Amendment through legislation. Under it, ‘Congress, and not the courts, was to judge whether or not any of the privileges or immunities were not secured to citizens in the several States.’" (521 U.S. 507, Kennedy’s Part III-A). But this flaw was remedied before the amendment was ratified; so, "[t]he power to interpret the Constitution in a case or controversy remains in the Judiciary." (521 U.S. 507, Kennedy’s Part III-A). So Congress "has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation." (521 U.S. 507, Kennedy’s Part III-A). Towards the end of his opinion, Kennedy says that "When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution." (521 U.S. 507, Part III-B). But making an "informed judgment on the meaning . . .  of the Constitution" is not the same as "interpret[ing] the Constitution in a case or controversy".

It appears that the Court is claiming sole power to determine what the substance of the Constitution is, as though it were the nation’s sovereign. According to the supreme Court, through the doctrine of judicial review, the supreme Court, and only the supreme Court, has final say about the meaning of the Constitution. This claim appears in numerous cases starting with Marbury v. Madison (1803). In Cooper v. Aaron the Court claimed that "the federal judiciary is supreme in the exposition of the law of the Constitution". Does this mean that the Court is sovereign? — In a reliable compact theory of government, governments are built based on consent, not based on brute power. So when anyone claims power it’s critical for everyone hearing the claim to consider whether they will consent to the claim, and acquiesce to the power, or not. Consent by the single, individual human being is the only lawful basis for consensual government. So the nation’s sovereign is the collective consent of its citizens. To the extent that the supreme Court’s claim is consistent with this definition of sovereignty, their claim is valid. After all, the legal buck has to stop somewhere. But that doesn’t mean that anyone is obligated to acquiesce to bad laws, even if the supreme Court claims they are good laws.

"When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. . . .  RFRA was designed to control cases and controversies, . . . " (521 U.S. 507, Kennedy’s Part III-B) So because Congress failed to point to the real harm being done nationwide by non-consensual police powers, and because Congress pointed instead to Smith as the harm RFRA was supposed to remedy, and because this elevated Congress into being a court of last resort, and because Congress elevating itself above the supreme Court violated the separation of powers doctrine, and because of all the problems indicated above with respect to the limit on Congress’s §5 enforcement power, the Court had ample ammunition to do what it was already predisposed to do: rule RFRA unconstitutional. 60

(h)RFRA not proper exercise of §5 power:

Each of the justices on the Court either "explicitly or implicitly endorsed Kennedy’s . . .  view of Congress’ enforcement power under the Fourteenth Amendment". 61

Sweeping coverage ensures its [(RFRA’s)] intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA's restrictions apply to every agency and official of the Federal, State, and local Governments. . . .  RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. . . .  RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion. . . .  The reach and scope of RFRA distinguish it from other measures passed under Congress' enforcement power . . .  This is not to say, of course, that §5 legislation requires termination dates, geographic restrictions or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress' means are proportionate to ends legitimate under §5. . . .  RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. (521 U.S. 507, Kennedy’s Part III-B)

This is probably true. If the Court cares about justice, then it should take this inventory as an identification of unconstitutional State laws, and remedy to "counteract" them. Whether such laws are motivated by "religious bigotry" or not is irrelevant, because whether they create an unwarranted burden is the only relevant issue under a common sense, face value reading of the free exercise clause. Kennedy is here essentially resorting to Scalia’s parade of horribles argument. 62 Kennedy continues by saying,

It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. (521 U.S. 507, Kennedy’s Part III-B)

That’s true. It is a reality of the "modern regulatory state". This is precisely why the present reality demands change.

When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. (521 U.S. 507, Kennedy’s Part III-B)

So if a governmental abuse is widespread, this is a good reason to ignore the squeaky wheel, and not give it any grease. Using another metaphor, if the canary in the mine dies, it’s OK for the Court to ignore its death and continue leading the nation further into the mine. This, friends, is a prescription for national disaster.

On June 25, 1997, the supreme Court ruled RFRA unconstitutional. 63

(i)State’s rights / "federalism":

The Court ruled RFRA unconstitutional on two bases: separation of powers and federalism. 64 By examining §5 in detail, Kennedy spent most of his opinion explaining the majority’s federalism argument. We’ve examined that, as well as his separation of powers argument. Here we’ll make a few concluding remarks about federalism and State’s rights.

The federalism argument is essentially a claim that the general legislative branch violated States’ rights. The argument indicates that Congress did this by breaking the linkage between the incorporated free exercise clause, the 14th Amendment §1 due process and equal protection clauses, and Congress’s §5 power to enforce §1 against the States. The Court claims that this chain is broken because RFRA is substantive instead of remedial / preventive. 65 They claim that it is substantive because they claim that RFRA changes the meaning of the free exercise clause. If the meaning of the free exercise clause is the same as the belief-action doctrine, then they are right. But if the meaning of the free exercise clause is simply the plain, face value meaning of what was written in the original 1st Amendment, the meaning is this: If any secular government lays a burden on any religion, they’d better have a compelling reason for doing so. Clearly, RFRA is much closer to the original meaning than the belief-action doctrine that is in essence the Smith rule.

The "New Deal" in the 1930s nullified the 10th Amendment, 66 and with it, State’s rights. After being long dormant, State’s rights and the 10th Amendment were revived in National League of Cities v. Usery (1976). But the Usery decision was reversed in Garcia v. San Antonio Metropolitan Transit Authority (1985), again leaving the 10th Amendment a nullity. In Boerne, the Court again attempted to revive State’s rights and, by implication, the 10th Amendment. — The big problem with all this haggling over the 10th Amendment is that virtually no one in power is watching out for "The powers . . .  reserved . . .  to the people". This perversion of the free exercise clause is further evidence that neither the secular general nor the secular State governments care even modestly for "The powers . . .  reserved . . .  to the people". What can one think, except that it’s essential for the people themselves to demand those powers, because the established government will not.

This "federalism" project to which the Rehnquist Court was committed is essentially a process of devolving power from the general government to its administrative provinces. This process, by itself, does little or nothing to ensure protection of unalienable Rights. This is because the State administrative provinces, being inherently secular social compacts, are no more qualified to exercise "powers . . .  reserved . . .  to the people" (10th Amendment) than the general government is. 67

By claiming that the RFRA was "a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens." (521 U.S. 507, Kennedy’s Part III-B), the majority was in essence insisting that the States are religious social compacts. 68 When the Court insists that the States have religious police powers (i.e., "general authority to regulate for . . .  health and welfare"), this conflicts diametrically with the Court’s claim that the States are secular, i.e., that they govern a diversity of religions. — The majority claimed that "The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith." (521 U.S. 507, Kennedy’s Part III-B). In other words, the Court claims that the States’ role in the nationally consolidated Welfare State – as administrative provinces, and in exercising "powers . . .  reserved to the States" under the 10th Amendment – is far more important than the "powers . . .  reserved . . .  to the people", 69 or the "rights . . .  retained by the people" (9th Am.). 70 As was the case before the War Between the States, the Court is protecting State’s rights at the expense of individual rights. If States were lawful religious social compacts, then this might be justified. But they aren’t. Before the War Between the States, the supreme Court protected slave owners who treated human beings as chattel. Now, the supreme Court is protecting mega-government’s ownership of its human chattel, for all citizens are wards of the Welfare mega-state.

O’Connor’s Opinion:

The majority’s conclusion that the RFRA was unconstitutional was based on the belief that Smith was valid. 71 In other words, in the majority’s view, Smith was constitutional law. O’Connor accepted the majority’s §5 reasoning as valid, as long as it did not involve Smith. In her dissent, Justice O’Connor said, "I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act (RFRA) is a proper exercise of Congress’ power to enforce §5 of the Fourteenth Amendment. . . .  I agree with much of the reasoning set forth in Part III-A of the Court’s opinion." (521 U.S. 507, O’Connor’s Introduction and Part I). Apparently O’Connor believed that the Court could have reviewed Smith, resurrected the compelling interest test therefrom, kept the conclusion to Smith the same (i.e., Smith loses), and try Boerne on compelling interest grounds.

O’Connor:

[A]s a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, . . .  the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause. (521 U.S. 507, O’Connor’s Introduction)

This course of action would have allowed Boerne to be decided on much more reliable 1st Amendment grounds.

In bringing up Smith, O’Connor again indicates that "five Members of this Court – without briefing or argument on the issue – interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by the individual’s religious beliefs" (521 U.S. 507, O’Connor’s Part I). — One wonders if she now regrets voting with these five. — She continues: "Contrary to the Court’s holding in that case, . . .  the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. . . .  Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct – regardless whether it was specifically targeted at religion or applied generally – we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest. . . .  The Court’s rejection of this principle in Smith is supported neither by precedent nor . . .  by history. The decision has harmed religious liberty." (521 U.S. 507, O’Connor’s Part I) — O’Connor continued by giving examples of how "federal" courts easily abused free exercise rights by basing their decisions on Smith. She said, "These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice. . . .  I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong." (521 U.S. 507, O’Connor’s Part I).

By assuming that Smith was valid law, the Smith rule entered into the Boerne decision by defining the distinction between substantive and remedial / preventive law. Any statute that implemented the Smith rule, i.e., the resurrected belief-action doctrine, would be remedial / preventive, and not a violation of constitutional law. Any statute that implemented some rule other than Smith – the Sherbert-Yoder doctrine, for example – would be substantive, because it would be exceeding the definition of free exercise concocted by the Court, specifically, in Smith.

After her opening remarks about Smith, O’Connor goes into a lengthy history of free exercise jurisprudence. Her arguments are very clear, and the historical facts presented are convincing. Since Smith, and since the demise of the RFRA, 72 we virtually have no right to free exercise directly under the general government unless the government arbitrarily chooses to allow it. It is an unalienable Right. But the Court has established that it is no longer a preferred freedom, and will protect it only when it feels like it.. O’Connor concludes that "the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith" (521 U.S. 507, O’Connor’s Part III).

Speaking of the framers, O’Connor claims that "the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes." (521 U.S. 507, O’Connor’s Part II-C). As part of her evidence, she quoted James Madison:

This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . .  [E]very man who becomes a member of any Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. 73

"To Madison, then duties to God were superior to duties to civil authorities – the ultimate loyalty was owed to God above all. . . .  The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law." (521 U.S. 507, O’Connor’s Part II-E) She continued in this vein by quoting George Washington. "George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:" (521 U.S. 507, O’Connor’s Part II-E)

[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit. (521 U.S. 507, O’Connor’s Part II-E) 74

O’Connor’s last quote is again from Madison:

‘[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights. . . .  [I]t is equally the gift of nature; . . .  it cannot be less dear to us; . . .  it is enumerated with equal solemnity, or rather studied emphasis. (521 U.S. 507, O’Connor’s Part II-E) 75

According to O’Connor, "all agreed that government interference in religious practice was not to be lightly countenanced. . . .  [A]ll shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’" (521 U.S. 507, O’Connor’s Part II-E). 76 In other words, human law, by itself, never suffices to produce "true religion and good morals" or "public liberty and happiness". — It’s interesting to note that religious leaders during the founding era were generally even more consonant with the principle of free exercise than were the political leaders. For example, "Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.’" (521 U.S. 507, O’Connor’s Part II-E). 77 — In her concluding remarks, O’Connor stated that "Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law." (521 U.S. 507, O’Connor’s Part III). To think otherwise is inherently despotic.

Even though O’Connor objected to the majority’s opinion, she nevertheless agreed with the thought that the supreme Court’s conception of the Constitution trumps the organic document. She made this claim by stating, "[W]hen it enacts legislation in furtherance of its delegated powers, Congress must make its judgments consistent with this Court’s exposition of the Constitution and with the limits placed on its legislative authority by provisions such as the Fourteenth Amendment." (521 U.S. 507, O’Connor’s Part I). 78

Even though O’Connor indicates that she believes that Congress overstepped its authority by passing the RFRA, 79 she also believes that Congress has an "obligation to draw its own conclusions regarding the Constitution’s meaning. Congress, no less than this Court, is called upon to consider the requirements of the Constitution and to act in accordance with its dictates." (521 U.S. 507, O’Connor’s Part I). So O’Connor agreed with Kennedy that Congress "has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution", and agreed that Congress should avoid entering into "judicial interpretation". She nevertheless apparently believed that the RFRA was a worthy attempt at correcting the supreme Court’s bad decision in Smith. She apparently believed that the RFRA was doomed because of its failure to conform to the supreme Court’s conception of the Constitution. She apparently knew that the remedy to Smith needed to come from the Court. She in essence claimed that stare decisis should be esteemed with great care. That thought was important if the Court was going to correct Smith. But O’Connor clearly knew that because the Court contended that Smith was valid, not only would the RFRA be held unconstitutional, but also in Boerne v. Flores, the party with the free exercise grievance was again getting shafted, and the Court was again failing to do its job properly. To avoid this injustice, she demanded, without satisfaction, that the Court put stare decisis aside, and revisit Smith – to resurrect the Sherbert-Yoder doctrine to applicability to neutral, generally applicable laws.

Other issues:

stare decisis:

Stare decisis, in the view of the majority, has a standing equal with the organic document. — This is very similar to the claim by Rabbinical Jews that the Talmud, the interpretive commentaries on the Tanakh (the Old Testament), has a standing equal with the Tanakh itself. It is also very similar to the claim by Roman Catholics that their church traditions have an equal standing with the Bible. — Following tradition instead of holding Scripture to be the beginning and end in the development of a clear, conscientious vision of reality, is in essence "following a mob in doing evil" (Exodus 23:2) — We believe that the organic document that we know as the Constitution should be more highly esteemed than case law, or statutory law, even more than the supreme Court’s opinions. This is because the supreme Court has been wrong about so much.

Stare decisis is an important source of societal stability. But when it becomes obvious to all but the most obtuse that stare decisis with regard to some specific issue is little or nothing more than following a mob in doing evil (Exodus 23:2), then stare decisis must give way to doing the right thing.

establishment:

In his concurring opinion, Justice Stevens claimed that RFRA "is a ‘law respecting an establishment of religion’ that violates the First Amendment". 80 He claims that

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52 -55 (1985). (521 U.S. 507, Stevens’s opinion)

In our view, there is no such thing as an "irreligion" because religion is defined in terms of belief systems, and an "irreligion" is as much a belief system as a religion. Even though Stevens’s concern about establishment is bogus in this regard, the concern about establishment is well founded on other grounds. Concern about establishment is true in this sense: Any religion that receives an exemption from a neutral, generally applicable law, by way of RFRA (or by any other law) is established to a degree because it’s exemption is a violation of the equal protection clause. Since RFRA actively promotes such exemptions, it is in essence a "law respecting an establishment of religion". — In effect, the Coalition for the Free Exercise of Religion (CFER) was a coalition of religions who wanted to be collectively established as the mega-state’s religion. They each wanted their tax-exempt status and their government freebies. If the jurisprudential status quo were not consumed in exercise of non-consensual police powers, these religions would be immune to such accusations as these.

sovereign immunity:

Even though Rehnquist’s majority decision in National League of Cities v. Usery (1976) was overruled in Garcia v. San Antonio M.T.A. (1985), his court’s defense of State’s rights continued not only in Boerne, but in several other cases as well. "On the last day of its 1998-1999 term, the U.S. Supreme Court issued a trio of rulings on federalism that significantly cut congressional power. The decisions concerned state challenges to federal legislation that allowed citizens to initiate private lawsuits against states in state courts. In each case, the Court ruled against Congress and in favor of protecting the states." 81 The three cases were Alden v. Maine, Florida v. College Savings Bank, and College Savings Bank v. Florida. "The three cases follow a trend of decisions, beginning in 1992 . . . , where the U.S. Supreme Court has cut back congressional power. In . . .  1996 the Court handed down Seminole Tribe of Florida v. Florida, ruling that Congress was prevented under the Eleventh Amendment from allowing American Indian tribes to sue states. . . .  In 1995 the Court decided United States v. Lopez where it invalidated the ‘Gun-Free Zones Act,’ ruling for the first time in six decades that Congress exceeded its authority under the interstate commerce clause." 82 Practically anything that reduces Congress’s megalomaniacal abuse of the commerce clause is a good thing. Nevertheless, returning such power to the States, rather than to the people, is a huge mistake. The Rehnquist Court’s propensity "to cut back federal power and devolve it back to the states" had huge problems, and so does any judge following the same inclination. 83 The most ominous of these cases that defend State’s rights at Congress’s expense were cases that defend sovereign immunity. Sovereign immunity essentially says that State officials can operate under color of law with impunity. In a lawful secular social compact, no one is above the law, not even the artificial person that each State is.

"parade of horribles":

When Justice Kennedy says that RFRA’s

Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. . . .  RFRA applies to all federal and state law, statutory and otherwise, whether adopted before or after its enactment. . . .  Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion. (521 U.S. 507, Kennedy’s Part III-B).

Kennedy is in essence citing Scalia’s "parade of horribles". 84 He is in essence indicating that if people in this country truly have free exercise, secular government will collapse. 85

The author of the "parade of horribles", Justice Scalia, wrote a concurring opinion in Boerne that was aimed specifically at debunking O’Connor’s claim that "historical materials support a result contrary to the one reached in" Smith (521 U.S. 507, Scalia’s Introduction). 86 Scalia’s opinion is an example of what obtuse rationalizations result when positive law is esteemed to the exclusion of morality. It’s reminiscent of the callous disregard for rights that the Court displayed in the Dred Scott Case (1857). Scalia sums up his position succinctly: "Religious exercise shall be permitted so long as it does not violate general laws governing conduct." (521 U.S. 507, Scalia’s concurrence). — What if the "general laws" are evil? As religious people, are we supposed to abide by them? — Scalia claims that "the background political philosophy of the age [of the founding] (associated most prominently with John Locke), . . .  regarded freedom as the right ‘to do what was not lawfully prohibited’" (521 U.S. 507, Scalia’s concurrence). It’s true that "the background political philosophy of the age . . .  regarded freedom as the right" to do what was lawful, i.e., to do what was not lawfully prohibited. But there is a distinction between what is lawful and what is legal. The word lawful has a moral content that legal lacks. But here Scalia is using the word "lawfully" as though it was equivalent to the word "legally". Lawful pertains to what is morally sound according (i)to a moral system that’s based on natural law and/or divine law, and (ii)to what is legal according to human law that is rationally consistent with such moral system. Legal pertains strictly to positive law. Again, Scalia is confusing what is lawful with what is legal, in his concurring opinion. — This is the kind of Orwellian language pollution one expects from Bolsheviks, or from people who think Taney’s opinion in Dred Scott was great.

We are convinced that the government of the Union was conceived to be interdenominational, not secular. We believe that by necessity, the Union must be not only interdenominational, but also interreligious. 87 We believe that the religion clauses of the Constitution were adopted (i)to keep one religion from dominating all the others and (ii)to keep minority religions from being abused by the secular government. Scalia’s position is essentially giving States license to establish a witch’s brew of secular humanism and nominal "Christianity" as State religion, and to abuse whatever minority religions may exist in a given State to whatever extent the State chooses. Scalia ends his concurring opinion with a veiled claim that he is facing reality straight on, while the minority is living in a utopian dream world. He says, "Who can possibly be against the abstract proposition that government should not . . .  place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases." (521 U.S. 507, Scalia’s concurrence). In other words, he can’t see how religious freedom is practical. Tyrants never see how individual liberty is practical. The rest of us know that freedom is an unalienable Right, and we understand that such rights are even more basic to who we are as human beings than our genetic composition, or our need for social order, or our obedience to social compacts. Denial of such basic facts of life is not practical.

The parade of horribles that Scalia, Kennedy, and company envision derives entirely from the existence of a plague of laws against mala prohibita, where such laws are imposed by secular governments without the express "consent of the governed". 88 This company of justices rightly sees big and serious problems with allowing the extensive free exercise that RFRA might have enabled. 89 As Kennedy put it,

Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If "‘compelling interest’ really means what it says . . .  many laws will not meet the test. . . .  [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." (521 U.S. 507, Kennedy’s Part III-B). 90

"Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest." (521 U.S. 507, Kennedy’s Part III-B) That’s because the answer to this question is obvious: "‘What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is "central" to his personal faith?’" (521 U.S. 507, Kennedy’s Part III-B). 91 Answer: A jurisprudential Ockham’s Razor: Does the act involve bloodshed or violation of prior consent?

The Court has painted itself into a corner. If it had said NO to all this accumulation of religious police powers by the general and State governments many decades ago, it would not be looking at an overwhelming situation now. Now there is indeed a very real problem with maintaining the Welfare State, and simultaneously guaranteeing every inhabitant their unalienable Right to free exercise. Either religious freedom must go, or the Welfare State must go. So here are the options: (i)Grant free exercise and watch the parade of horribles drive the nation into ruin. 92 (ii)Deny free exercise and have a full-blown police state. (iii)Get rid of all the religious police powers that now exist under the immediate jurisdictions of secular governments; restrict secular governments to secular police powers; eliminate all non-consensual positive laws. — Neither of the first two options is practical, or palatable. The latter option is obviously radical, and inevitably requires effort, time, and coordination to pull off. This is because it requires that most of the population be weaned off the Welfare State. Practically everyone from food-stamp recipients, to Social-Security beneficiaries, to recipients of "corporate welfare", to recipients of educational grants, to Medicare recipients, to bureaucrats of every stripe and color, to banks, to government workers of every kind, to real estate developers, to home equity owners, to recipients of every conceivable privilege of secular government, would kick, scream, and throw tantrums if deprived of their largesse from the secular udder. Very few of them will volunteer to be weaned off Welfare. So this third option also sounds like it won’t work. But regardless of the effort required, logic says it’s the only way.

After Boerne v. Flores and the demise of the RFRA, the coalition that lobbied for the RFRA (CFER) restructured itself to pursue the free exercise goal by other means. 93 It initially rewrote the RFRA in the form of the Religious Liberty Protection Act (RLPA), and attempted to lobby Congress on its behalf. But after Boerne, many members of the coalition left it because Boerne convinced them that Scalia’s parade of horribles was not merely imaginary, but real. 94 For example, the American Civil Liberties Union (ACLU) left the coalition when it realized that RFRA / RLPA would allow religious landlords to refuse to accept homosexual tenants. Other coalition members left the coalition because they, like the ACLU, saw that their access to the Welfare udder might be eliminated if RLPA became law. — The RLPA failed to become law.

At this writing, the coalition’s objective is passage of State-level RFRAs. 95 Since the supreme Court left open the possibility that each State could adopt its custom version of the RFRA – patterned after the defunct "federal" RFRA – the coalition turned to focus on that goal. But State RFRAs have the same problems that the "federal" RFRA had. State judges – just as much as judges of the general government – typically conceive of their jobs as protectors of the existing government’s turf. Welfare / Regulatory / Administrative bureaucracies – and all the legal accoutrements that support them – represent a huge amount of government power. Human history makes it unavoidably obvious that governments almost never voluntarily surrender power, or give up turf. Scalia, Kennedy, and company represent an almost uncontrollable inclination to refuse the surrender, by government, of power to people outside the existing power structure. In other words, people in power rarely volunteer to give up power. — If ordinary people get to do whatever they like – as long as it’s not bloodshed – then secular governments, including State governments, are reduced to the relatively narrow jurisdictions defined by lawful secular social compacts. This is a huge reduction in the size of government. Officials don’t want to give people this kind of freedom because doing so entails relinquishing all the powers – State, "federal", and otherwise – with which these Welfare / Regulatory / Administrative governments are now bloated. But the fact is that this freedom is not theirs to give. It is unalienable, given by God. To think otherwise is to defend tyranny. So the problem with State RFRAs is the same as the problem with the "federal" RFRA. Some States have naively passed RFRAs. But judges at State and local levels will almost inevitably reject State RFRAs on the same parade of horribles grounds. 96 Governments hate relinquishing power at all levels. — Clearly, our nation, at every level, is taking option (ii): Deny free exercise, and have a full-blown police state. And the general population snores on, while the informed are generally misinformed.

Roman Catholic sex abuse:

One of the more distressing things about the Roman Catholic sex abuse scandal at this writing is that the Catholic hierarchy appears inclined to hide behind State RFRAs. 97 They have been very stingy in their cooperation with secular authorities. They have attempted to have their own tribunals, administer their own justice, follow their own statute of limitations, and report abuse by clergy only when explicitly mandated by secular authorities. On top of this, representatives of the Catholic Church have been lobbying heavily to get State RFRAs passed. As of the end of 2002, eleven States had done so: Texas, South Carolina, Rhode Island, Oklahoma, New Mexico, Illinois, Idaho, Florida, Connecticut, Arizona, and Alabama. The State RFRAs make it simpler for the Church and its culpable clerics to avoid accountability for their bloodshed. State RFRAs assist the Church to refuse discovery in civil suits, to refuse to report likely abuse to secular authorities, and to refuse to cooperate with investigations. Because of the confusion of the concepts of malum prohibitum and malum in se, the concepts of law and equity, the concepts of actions ex contractu and actions ex delicto, in short, because of the existence of non-consensual police powers, the State RFRAs are perfect tools for undermining prosecution of child abuse perpetrated by delinquent clerics.

In 2002, the Boston Archdiocese tried for months to avoid discovery. It attempted to use both free exercise and establishment clause defenses, and failed in each. It claimed the "Church Autonomy Doctrine", to the embarrassment of all who knew it wouldn’t work. It claimed it was doing these things because its insurance carrier demanded that it do so. This may be true. But even if it is, it still makes the Church guilty of aiding and abetting bloodshed. With this history, it’s likely that the Church will try – if it has not already tried – to claim that the belief-action doctrine (resurrected by Smith and affirmed by Boerne) only applies to criminal cases, and not to civil cases; since most of the actions against the Church are civil. Since the merger of law and equity, civil cases are generally tried by much less rigorous standards, and much more by fiat. The distinction between delict and contract is blurred to the point that just about anything can happen. But even if the Church tries to do this, it’s not likely to work, because the logic in Smith applies as much to civil as it does to criminal cases.

Some people who follow these Catholic sex abuse cases believe that the statute of limitations should be eliminated for child sexual abuse cases. The statute of limitations exists because over the passage of time, evidence tends to become stale, and difficult to use in a court. So there is a legitimate reason for the existence of the statute of limitations. Even so, for child sex abuse, perhaps the statute of limitations should be lengthened. That’s because children almost never understand what’s happening to them when they are abused by adults. It’s only when they become older that they know. So the counting of lapsed time in child sex abuse cases should not start running until the victim reaches the age of majority. That way, the statute of limitations would never become effective while the child was still a minor. This modification to statute of limitations laws would reduce the chances that criminal clerics would escape accountability.

RFRA’s continued applicability:

A reasonable understanding of the Court’s §5-based refutation of RFRA leaves it unmistakably clear that the general legislation does not apply to the States. 98 Even though nothing in the Boerne decision states clearly that RFRA still applies to the general government, the §5-based argument certainly left the possibility open. Here is evidence that RFRA still applies to the general government, even though it doesn’t to the States:

In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment. (Ginsburg’s majority opinion in Cutter v. Wilkinson (03-9877) (2005), Part IA.)

The endnote attached to this statement clarifies: "RFRA, Court of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. . . .  This Court, however, has not had occasion to rule on the matter."

Impact on AIRFAA:

Ironically, while RFRA has been repudiated as applicable to States, AIRFAA of 1994 has not been challenged in any significant way. 99 "[T]he Supreme Court’s decision in Boerne has not had an immediate impact on the 1994 amendments to the American Indian Religious Freedom Act, which provides protection for the religious use of peyote." 100

There are clauses in the AIRFAA that rely on RFRA. RFRA still applies in "federal" cases, so these clauses are unaffected in "federal" jurisdictions. Section (b)(4) of AIRFAA says that "Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act". This means that even in States, because Indians have a special status, RFRA’s "balancing test" probably applies. — To placate people concerned about people driving while under the influence of peyote, and people concerned about people being under the influence while on military duty, sections (b)(6) and (b)(7) indicate that RFRA’s balancing test should apply. Both of these sections are common sense. — Overall, the State-wide demise of the general RFRA has not, and should not, have any significant influence on AIRFAA’s standing.

"In the wake of City of Boerne v. Flores, the law of religious freedom remains unsettled. Some in Congress have called for a new law, this time keyed to ‘interstate commerce.’ Others, more ominously, have begun to call for a constitutional amendment that would guarantee the ‘right of the people’ (meaning the majority) ‘to publicly recognize their religious heritage.’ But ironically, the Native American Church retains its statutory protection because it is not part of RFRA. The stone that the builders rejected has become the cornerstone." 101

Conclusion:

Clearly, our nation – at every level of the tiered jurisdictional system – is tending to deny free exercise and have a Disneyland-like police state. It is therefore following the Soviet Union and the Tower of Babel to oblivion. The nation is also failing in its most fundamental purpose, bringing justice to perpetrators of bloodshed. Since in a police state, government authorities are the primary perpetrators of bloodshed, it’s no surprise that many criminals who deserve retribution go without it, while many people who perform mala prohibita are treated as perpetrators of bloodshed. As a culture, we are in very serious trouble, more from our own mismanagement than from any terrorist or other foreign or natural threats. Apathy and inertia are two of our biggest enemies.

Footnotes

1Murray Rothbard, The Ethics of Liberty, Chapter 19, "Property Rights and the Theory of Contracts". — This book can be found on the internet at the Ludwig von Mises Institute website, URL: http://www.mises.org/​rothbard/​ethics/​ethics.asp.

2RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf; AIRFAA URL: https://www.law.cornell.edu/​uscode/​text/​42/​1996a.

3Quoting 10th Amendment, URL: ./0_7_Am_X.htm​#TenthAmendment.

4RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

5AIRFAA URL: https://www.law.cornell.edu/​uscode/​text/​42/​1996a.

6Since before the ratification of the Constitution, this nation has vacillated between being a confederate republic and a national consolidation. Without clear definitions of jurisdictions, the Court’s marginal efforts towards conserving the confederate republic are not even modestly helpful.

7RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

8Religious Freedom and Indian Rights, p. 253.

9RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

10RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

11Religious Freedom and Indian Rights, p. 258.

12RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

13Quotes are from The Oxford Companion to the Supreme Court of the United States, pp. 789-790, "Slaughterhouse Cases", by Michael Les Benedict.

14The Oxford Companion to the Supreme Court of the United States, p. 790, "Slaughterhouse Cases", by Michael Les Benedict.

15Quotes are from The Oxford Companion to the Supreme Court of the United States, p. 790, "Slaughterhouse Cases", by Michael Les Benedict.

16Quotes are from The Oxford Companion to the Supreme Court of the United States, p. 790, "Slaughterhouse Cases", by Michael Les Benedict.

17The Oxford Companion to the Supreme Court of the United States, p. 790, "Slaughterhouse Cases", by Michael Les Benedict.

18The Oxford Companion to the Supreme Court of the United States, p. 791, "Slaughterhouse Cases", by Michael Les Benedict.

19The Oxford Companion to the Supreme Court of the United States, p. 791, "Slaughterhouse Cases", by Michael Les Benedict.

20Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

21Regarding the Bill of Rights, URL: ./0_6_Bill_of_Rights.htm. — It’s important to note in passing that the incorporation doctrine, largely through the Commerce Clause, has also been used to pervert the Bill of Rights.

22RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

23RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

24See Article II § 2, URL: ./0_3_Art_II.htm​#IdealPlan.

25RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

26RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

27RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

28RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

29"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." (14th Amendment §5)

30RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

31The Oxford Companion to the Supreme Court of the United States, p. 481, "Katzenbach v. Morgan", by Tinsley E. Yarbrough.

32RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

33"Cong. Globe, 42d Cong., 1st Sess., at App. 11 (statement of Rep. Garfield)" — 521 U.S. 507, Kennedy’s Part III-A-1.

34Religious Freedom and Indian Rights, p. 206.

35The Oxford Companion to the Supreme Court of the United States, p. 805, "South Carolina v. Katzenbach", by Theodore Eisenberg.

36The Oxford Companion to the Supreme Court of the United States, p. 805, "South Carolina v. Katzenbach", by Theodore Eisenberg.

37The Oxford Companion to the Supreme Court of the United States, p. 805, "South Carolina v. Katzenbach", by Theodore Eisenberg.

38The Oxford Companion to the Supreme Court of the United States, pp. 805-806, "South Carolina v. Katzenbach", by Theodore Eisenberg.

39Religious Freedom and Indian Rights, p. 207.

40The Oxford Companion to the Supreme Court of the United States, p. 481, "Katzenbach v. Morgan", by Tinsley E. Yarbrough.

41Religious Freedom and Indian Rights, p. 208.

42RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

43Religious Freedom and Indian Rights, p. 256.

44RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

45RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf. — It’s interesting to note in passing that the Court’s belief that Congress was substantially modifying the Constitution is a lot like the pot calling the kettle black.

46Religious Freedom and Indian Rights, p. 257.

47Religious Freedom and Indian Rights, p. 265.

48It has done likewise by affirming Congress’s creation of "substantive rights" with respect to money, separation of powers (via creation of the administrative state), nullification of liberty to contract, expansion of the commerce clause into absurdity, etc., etc., ad nauseam.

49RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

50RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

51Religious Freedom and Indian Rights, p. 260.

52RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

53And they should revive RFRA (URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf) as they rid themselves of all their bad laws, because without bad laws, RFRA establishes virtually nothing, and is a bulwark against bad government.

54RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

55Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

56RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

57RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

58RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

59Religious Freedom and Indian Rights, pp. 256-257.

60RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

61Religious Freedom and Indian Rights, p. 261.

62Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

63RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

64RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

65RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

66Regarding 10th Amendment, URL: ./0_7_Am_X.htm​#TenthAmendment.

67Regarding 10th Amendment, URL: ./0_7_Am_X.htm​#TenthAmendment.

68RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

69Quoting 10th Amendment, URL: ./0_7_Am_X.htm​#TenthAmendment.

70Quoting 9th Amendment, URL: ./0_B_Am_VI-IX.htm​#AmNine.

71"The Court’s analysis of whether RFRA is a constitutional exercise of Congress’ §5 power . . .  is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims." — 521 U.S. 507, Part I of Justice O’Connor’s dissent. — If it’s legitimate for a supreme Court justice to hold that a supreme Court opinion is invalid, it makes sense that a power reserved to the people might be a similar view of a given supreme Court opinion.

72RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

73O’Connor takes this quote from 2 Writings of James Madison, pp. 184-185.

74Letter from George Washington to Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding.

75Some concluding arguments in Madison’s "Memorial and Remonstrance", 2 Writings of James Madison, p. 191 (online at Library of Congress, URL: http://www.loc.gov/​exhibits/​madison/​images/​vc3.jpg; University of Chicago Press / Liberty Fund, URL: http://press-pubs.uchicago.edu/​founders/​documents/​amendI_religions43.html; and National Archives, URL: http://founders.archives.gov/​documents/​Madison/​01-08-02-0163).

76She quotes Curry, The First Freedoms, p. 219, which is quoting the Continental Congress.

77The inner quote is from "Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay", in Isaac Backus on Church, State, and Calvinism, p. 487.

78If this claim is true, then Congress should have happily conformed itself to Dred Scott. In fact, Congress did conform itself to Dred Scott too much. It should have told the Court to take a flying leap, based on "The powers . . .  reserved . . .  to the people". We should do the same when the Court concocts rotten decisions like Smith. — Regarding Dred Scott: "[A]lthough blacks could be citizens of a given state, they were not citizens of the United States having the concomitant right to sue in federal courts." (The Oxford Companion to the Supreme Court of the United States, p. 760, "Scott v. Sandford", by Walter Ehrlich.)

79RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

80RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

81Religious Freedom and Indian Rights, p. 267.

82Religious Freedom and Indian Rights, p. 268.

83Religious Freedom and Indian Rights, p. 268.

84Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

85RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

86Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

87"The government of the Union was conceived to be, not secular, but nondenominational, even interdenominational" — Principles of Confederacy, p. 534. — Even a superficial study of American history makes it obvious that Graham is correct. The united States was not intended to be secular in the legal sense of the word. But it was nevertheless intended to encompass all religions, as long as such religions were obedient to a modest set of requirements. It is part of the human condition that complete articulation of all such requirements is difficult, and may ultimately be impossible. Nevertheless, guidelines exist, and should be heeded, rather than ignored whenever it’s deemed convenient.

88Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

89RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

90Kennedy quotes Scalia’s opinion in Smith, 494 U. S., at 888. See URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

91Kennedy quotes Scalia’s opinion in Smith, 494 U. S., at 887.

92Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

93RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

94Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

95RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

96Regarding "parade of horribles", URL: ./0_8_3_Am_I_(Smith).htm​#ParadeOfHorriblesIntro.

97RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

98RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

99RFRA URL: https://www.congress.gov/​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf; AIRFAA URL: https://www.law.cornell.edu/​uscode/​text/​42/​1996a.

100Religious Freedom and Indian Rights, p. 273.

101To an Unknown God, p. 240.

 
 
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