See http://www.jstor.org/stable/1073407
Of course, if a statute incorporates a constitutional test that, according to the Court, had required it to do things no article III court could do -- which is one reading of Smith, namely, that application of the Sherbert/Yoder test was beyond the judicial ken -- then the statute is unconstitutional for having borrowed the constitutional "test." That was, as I recall, Marci's reading of Smith -- and not an unreasonable reading, given Scalia's rationale. But I think it fair to say that the Court rejected that reading of Smith -- and of the Court's own alleged institutional disability -- in Cutter, and implicitly in O Centro. On Mon, Dec 30, 2013 at 6:43 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I'd love to hear what others have to say on this, but I just don't > see any serious basis for concluding that Congress can't create statutes > that borrow constitutional law terminology. Laws of course borrow > common-law terms and doctrines all the time; why would they be barred from > borrowing constitutional law terms and doctrines? > > Indeed, Title VI was interpreted in Bakke as incorporating the > Equal Protection Clause standard for what constitute permissible race > preferences. (I think that was wrong as a matter of statutory > construction, but that's the interpretation the Court used, with no > suggestion that there was any constitutional problem with such an > interpretation.) 18 USC sec. 3509 provides that trial closure orders must > be narrowly tailored to a compelling government interest. State disorderly > conduct statutes sometimes refer to "fighting words." Federal and state > obscenity law often incorporates (indeed, has to incorporate) judicially > defined concepts such as "prurient interest" or "serious literary, > artistic, political, or scientific value." I'm sure others can add to the > list. Is there a single precedent from any court that tells us that > legislative incorporation of constitutional law terminology that was > crafted by courts is unconstitutional? > > Eugene > > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton > Sent: Monday, December 30, 2013 12:56 PM > To: Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: courts and lawmaking > > There is no precedent for Congress to borrow the Court's constitutional > doctrine and cases to enact a statute, so the lack of precedent proves > nothing. Moreover, a statute that is wholly novel itself raises questions > about constitutionality, which the Court has said a number of times. > > > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Dec 30, 2013, at 3:21 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > > > It seems to me that, if we're talking about what's "disingenuous," it > would be more disingenuous to treat a federal statute that creates a > statutory cause of action as "in fact an attempt by Congress to amend the > Free Exercise Clause." The Equal Protection Clause doesn't extend to > private actors, but Title VII creates a federal statutory cause of action. > The Fourth Amendment is limited in various ways; Congress routinely > creates new privacy protections that go beyond the scope of the Fourth > Amendment. Likewise, the Free Exercise Clause doesn't mandate exemptions > from generally applicable laws, but Congress is entitled to create such > exemptions from federal laws. And I know of no authority for the > proposition that Congress may not define its statutory provisions by > borrowing a constitutional standard of review that references > constitutional cases. > > > > Eugene > > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu > > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci > > Hamilton > > Sent: Monday, December 30, 2013 10:08 AM > > To: Law & Religion issues for Law Academics > > Cc: <religionlaw@lists.ucla.edu> > > Subject: Re: courts and lawmaking > > > > There needs to be more precision in the use of the term "rights." > > > > RFRA is in fact an attempt by Congress to amend the Free Exercise Clause > by simple majority vote. For Congress, Smith was not the final word on > the interpretation of free exercise; instead it inserted Yoder as its > preferred interpretation, at the behest of political pressure from > religious groups and at the time severely misguided civil rights groups who > have finally come to their senses and understand that RFRA is a means for > religious groups to undermine minorities and vulnerable populations. > > > > RFRA employs a constitutional standard of review that references > constitutional cases. It is disingenuous to treat it as anything other > than it is. > > > > As Boerne pointed out in a fn, as an amendment to the First Am, it > violates Art V's amendment requirements. > > > > If RFRA is, alternatively, a statutory rights statute, the courts have > no special role and are simply interpreting congressional intent,which > undermines Mark's points in my view. > > > > Marci > > > > > > Marci A. Hamilton > > Verkuil Chair in Public Law > > Benjamin N. Cardozo Law School > > Yeshiva University > > @Marci_Hamilton > > > > > > > > On Dec 30, 2013, at 12:11 PM, mallamud <malla...@camden.rutgers.edu> > wrote: > > > >> Mark's point makes sense to me: "As is often the case, courts have to > do what they can, despite institutional difficulties, to protect rights, > whether constitutional or statutory." One important aspect of the division > of power between courts and the legislature is that when important > decisions do not get made politically, the Supreme Court often can save the > day. Brown for example although I prefer to use cases like the Nixon tapes > case where the Court made a narrow decision, recognizing an executive > privilege subject to an exception for the production of material to the > grand jury in a criminal case in which the President is an unindicted > coconspirator. > >> > >> But I disagree with Mark on RFRA. I think that Smith was correct and > I think that the Congress, driven by political and "majoritarian" > considerations should not try to make constitutional law. Justice Douglas > said that it took five years or so for a new Justice to develop an approach > to judging. I always understood that to mean that a person comes to the > Court with a perspective and understanding honed in particular contexts and > that the Court took a unique and different view of things because they saw > things, not based on their previous experience or political biases, but > developed from an understanding of the Court's unique role and perspective. > Think Justice Souter, whom the women's movement demonized during the > appointment process. Unfortunately the Court seems to be popularly viewed > as a group of people who conform to their prior roles and prior > understanding of judging. I hope that I am wrong about that. And insofar > as advocates of rights seem to adopt that stance, fighting during the > confirmation process, I think that in principle it is self-defeating > because the role of the Court in the area of rights is to make decisions > not driven by the majoritarian process. > >> > >> That being said, if competence is the issue, I think that the > Congress, driven as it is by politics and the majoritarian process, is > uniquely unsuited to defining rights. > >> > >> And I would argue that the majoritarian process does not serve its own > interests well. I have no doubt that the standard purportedly mandated by > RFRA legalizes polygamy because there are less restrictive ways of dealing > with the evils of polygamy than prohibiting it. I also do not believe that > advocates of RFRA desired that result. > >> > >> Finally, to me, free exercise of religion protects the practice of > religion but does not authorize the use of that clause to stand in the way > of enforcement of general laws. The whole idea of freedom of religion is > to provide an atmosphere in which people are free to worship what gods they > will, and not to provide a "get-out-of-jail-free" card for failing to > follow general laws. Such a privilege, in my judgment, promotes > disharmony. Thus, I understand Smith to provide a good baseline that > promotes harmony. [As a practical matter, if one wishes to engage in an > endeavor, one must follow the general practices required. In capitalism > setting up a drugstore usually means, in a defined market, that once a > given number are reached, there will be no more. And a drug store is > clearly a business affected with the public interest. Thus, religious > views should not define what services are provided. The same goes for > medical services that should be governed by the interests and beliefs of > the patient, not the provider.] The definition of rights should not be > governed by the majoritarian process. The Court presumably has a broader > perspective and is better suited to defining rights than the democratically > elected legislature. I think we would all be better served to promote the > Court as a body that develops a broad perspective possibly unrelated to > their prior beliefs on cases and issues and follows a perspective based on > the best interests of the Republic. > >> > >> [But I do not know how to prevent Congress from amending all laws it > >> has passed without giving the courts an impossible task--Congress > >> writes and rewrites the law.] > >> > >> Jon > >> > >> > >> > >> > >> > >> > >> On 2013-12-29 00:08, Scarberry, Mark wrote: > >>> Marci, > >>> > >>> Isn’t there a clear difference between a court’s overriding of the > >>> legislature, and a court’s exercise of authority granted by the > >>> legislature? That distinction would seem to make your Lochner and > >>> Lee Optical arguments unpersuasive, as I think Eugene has pointed > >>> out numerous times. > >>> > >>> Perhaps your argument is that the RFRA is an unconstitutional > >>> delegation of authority by Congress to the judicial branch. I’m all > >>> for reinvigorating a non-delegation doctrine so as to rein in the > >>> administrative state (and I hope to write something on it soon). But > >>> wouldn’t it be an outpost position to say that Congress may not > >>> allow the federal courts to develop a kind of federal question > >>> common law, under standards set by Congress, and subject to > >>> correction at any time by statute? > >>> > >>> Would your approach make the Sherman Act unconstitutional, because > >>> it was designed to give (or at least has been interpreted as giving) > >>> give broad leeway to the courts to develop antitrust law as a kind > >>> of federal common law? See, e.g., the Supreme Court’s 2007 Leegin > >>> decision (http://www.law.cornell.edu/supct/html/06-480.ZS.html [1]) > >>> overruling the 1911 Dr. Miles decision on resale price maintenance > >>> agreements, so that they no longer are per se violations of the > >>> Sherman Act but are now governed by a rule of reason analysis . > >>> > >>> That is not to say that it is good policy for Congress to give the > >>> federal courts this kind of authority, or that courts are > >>> particularly good at deciding how to exercise it. > >>> > >>> As is often the case, courts have to do what they can, despite > >>> institutional difficulties, to protect rights, whether > >>> constitutional or statutory. For those of us who think Smith was > >>> wrong, the RFRA is the best we can do to create meaningful and broad > >>> protection of religious liberty against actions of the federal > >>> government, and I’m happy that it is still in place. > >>> > >>> Mark > >>> > >>> Mark S. Scarberry > >>> > >>> Professor of Law > >>> > >>> Pepperdine Univ. School of Law > >>> > >>> FROM: religionlaw-boun...@lists.ucla.edu > >>> [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marci > >>> Hamilton > >>> SENT: Saturday, December 28, 2013 5:29 PM > >>> TO: Law & Religion issues for Law Academics > >>> CC: Law & Religion issues for Law Academics > >>> (religionlaw@lists.ucla.edu) > >>> SUBJECT: Re: courts and lawmaking > >>> > >>> Eugene- I take it you would not have overturned the Lochner line of > >>> cases? > >>> > >>> Your defense of unaccountable, robust policy making by judges would > >>> revive the federal court's role in those cases and reverse the > >>> reasoning of, eg, Williamson v lee optical. You have also failed to > >>> articulate any meaningful limit on federal court policy making. > >>> > >>> Perhaps you think there should be no limit, but that is not > >>> consistent w the separation of powers cases or the Framers' belief > >>> that all entities holding power must be limited and that one means > >>> of limitation is to assign different primary roles to each branch. > >>> > >>> also--It is not enough to say that Congress can fix a bad decision > >>> to excuse a violation of a branch's structural role. > >>> > >>> I also question your broad generalizations in describing purported > >>> federal judicial policy making . As you have to and do concede, > >>> federal common law is forbidden, so generally you are talking about > >>> cases where the federal courts are engaging in statutory > >>> interpretation. As such, they are not making law in the first > >>> instance, but rather according to canons of statutory construction. > >>> > >>> I think you have fundamentally confused the role of the courts with > >>> the results of particular decisions. I also think the state and > >>> federal courts cannot be equated in terms of their roles, so I am > >>> focussing on federal courts. > >>> > >>> You also have not responded to any of my concrete examples of how > >>> courts have gone wrong in religion cases because they lack critical > >>> facts where the fact record is manufactured by self-interested > >>> parties. Given the incontrovertible record of harm religious > >>> entities have inflicted on > >>> > >>> vulnerable populations, and the fact courts cannot pierce their > >>> self-serving crafting of the record in most circumstances, the role > >>> of the courts you describe is likely to harm minorities, children, > >>> the disabled, and women. Not to mention employees generally in light > >>> of Hosanna Tabor (remember employees are almost always vulnerable to > >>> employer acts unless protected by statute). > >>> > >>> For all of these reasons, I am not persuaded that your "description" > >>> of federal court lawmaking is accurate, and I continue to believe > >>> that RFRA puts federal courts in a role where they are > >>> institutionally incompetent. Their incompetence was clear in the > >>> Lochner cases. The religion cases and recent history do not make the > >>> courts anymore defensible as policymakers. > >>> > >>> Marci > >>> > >>> Marci A. Hamilton > >>> > >>> Verkuil Chair in Public Law > >>> > >>> Benjamin N. Cardozo Law School > >>> > >>> Yeshiva University > >>> > >>> @Marci_Hamilton > >>> > >>> Links: > >>> ------ > >>> [1] http://www.law.cornell.edu/supct/html/06-480.ZS.html > >> _______________________________________________ > >> To post, send message to Religionlaw@lists.ucla.edu To subscribe, > >> unsubscribe, change options, or get password, see > >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >> > >> Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > > unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > > unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
