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). 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 5^th 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" (10th Amendment). 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. The Court focused above all on §5 of the 14^th 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" 1^st 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. 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),[note] we need to look at Boerne in detail.

(i)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. He claimed that the denial of the building permit "placed a substantial burden on the church members' ability to freely exercise their religion".[note] 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 14^th Amendment says,

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

RFRA also depended upon 14^th 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 5^th 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 5^th 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)] 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 14^th 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 14^th Amendment §1 equal protection clause. 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.'".[note]

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. 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 14^th 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 14^th 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.[note]

"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."[note]

"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, 13^th Amendment §2, 14^th Amendment §5, and 15^th 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.[note]

"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."[note]

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."[note]

"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".[note]

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 14^th 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".[note] —— 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. 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. 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.

(ii)RFRA relied on 14th Amendment §5:

Now that the basic nature of the 14^th 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. Flores and Boerne disagreed about the extent of the power that 14^th 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), 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 Disney-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 14^th 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 13^th Amendment to frame the Civil Rights Act of 1875. This amendment abolished slavery. Like the 14^th and 15^th Amendments, it gave "congress power to enforce the amendment by appropriate legislation". Unlike 14^th 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 13^th 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 [(13^th 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.[note] 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 positive 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 14^th Amendment §5, Bradley made the following statements that were very pertinent to Boerne: (i)The 14^th Amendment "does not invest congress with power to legislate upon subjects which are within the domain of state legislation". (ii)The 14^th 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 14^th 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 14^th 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 14^th 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 14^th Amendment are unalienable Rights, i.e., property rights. (iv)If the 14^th 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 14^th 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 14^th 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. 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. 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). 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 14^th 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. But Flores claimed that Congress could use this 14^th Amendment §5 enforcement power[note] 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 1^st 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. 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".[note]

We can understand the Court's enthusiasm for rejecting RFRA to preserve "federalism". In other words, "The [Fourteenth Amendment] limited but did not oust the jurisdiction of the State[s]".[note] We're convinced that the Court's interpretation of the 14^th 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 14^th 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).

(iii)§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."[note] 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.".[note] —— Since the wording in 15^th Amendment §2 is the same as that in 14^th Amendment §5, and since the right to vote is subject to the equal protection clause, any reference to 15^th Amendment §2 in these voting rights cases is likely to be equivalent to a reference to 14^th 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.".[note]

"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."[note] —— "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."[note]

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.".[note] —— "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".[note] —— 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.[note] 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. 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."[note] —— 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. 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.

(iv)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. 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".[note] 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."[note]

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.[note] 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.

(v)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." (