The first question lawyers and other interested observers should ask when looking at a statute is, "Is this statute constitutional?"
I'm not sure we always do that, on the theory that life is too short, but when the statute is critical to the outcome of a case, maybe we should. There are so many statutes that are critical to the outcome of any case that we usually take it for granted that most are constitutional.
If it's been in use for awhile we're tempted to assume that a statute has been tested and upheld.
Vehicular moving violations, for example. It's not a bad idea to check constitutionality, however. If the statute hasn't been definitively upheld, then keep reading. Some traffic regulations, evidence code regs, civil code and procedural laws, family code, and laws in all other areas, have been challenged and found wanting.
If we're considering an Act of Congress, this means,
"Since the Constitution only grants certain limited powers to Congress (see Art. I, Sec. 8, Clauses 1-17, plus 18, Necessary and Proper), and reserves the rest, not otherwise prohibited, to the states and to the people (Amendment 10), including the power to regulate public health, safety, welfare, and morals (aka the Police Power, which was deliberately withheld from Congress in favor of the states), which power, exactly, is Congress purporting to exercise?"
That may be a long question, but if there's anything you don't want to forget after walking out of your last Con-law class (after what is the Power of Judicial Review), it's probably this.
I know, there's also Due Process, Equal Protection, and a few other Winners, but this question, because of its seeming complexity, deserves to be highlighted.
It's not really all that complex, if you think about it.
All it says is that Congress has some powers, but not others.
Congress can only exercise the powers that it has been given.
If Congress exercises a power it hasn't been granted in the Constitution, guess what, it's unconstitutional once the U.S. Supreme Court says so, as soon as the statute is appropriately attacked in court.
Until then there may be room for some doubt, even if not much.
Okay, here's the question. Congress decides that there are entirely too many complaints being made that state prisoners are being deprived of the right to practice their religion. Christians wish Sunday services with the chaplain of their denomination. Jews want kosher food and to wear yarmulkes. Native Americans want to wear their hair long or braided. Sikhs want to wear the turban. Muslims may wish to grow a beard. Muslim women may wish to wear a religious scarf.
These are all signs of devotion, integral to ones identity as a person. Outside of prison, that is. But inside, can these be taken away by government? What about freedom of religion? Does that exist behind bars? Can it be taken away? Suppose the warden requires all prisoners to attend Baptist, or Catholic religious services on Sunday to help rehabilitate prisoners because faith in God spurs reform. What about the Nation of Islam, the so-called Black Muslims? Do they have special rights? They've drawn great support from proselytizing amongst prisoners. Are they a religion? Or do they have aspects of a prison gang, imposing order and discipline among members? Will such a power of a religious group constitute a challenge to the warden's authority?
Prison regulations often require the giving up of these religious practices by prisoners in the name of health and security concerns. One uniform, one short haircut, one diet, limited personal possessions, etc. We don't want bad things concealed under garments.
Otherwise the inmates would be running the institution, it is feared. The guards are supposed to be in control, not the prisoners.
So Congress passes a law requiring state prisons to provide "reasonable accommodation" for the religious practices of inmates.
Was Congress granted the power to order the states how to treat their prisoners?
Which enumerated right does this power fall under?
Commerce? No
Copyright? No.
Bankruptcy? No.
Army/Navy? No.
No legislature, incidentally, is required to state which power it is exercising, or the reasons why, although it may not be a bad idea for them to do so, and they frequently do.
It might not be a good idea so to state where it is unclear which power Congress is exercising, such as in case the regulation (law or enactment) may conceivably slop over into two or more powers.
I suggest that we name this idea the soon-to-be-famous, perhaps, "Sheridan Slop-Over Doctrine," with all royalties to be sent to the undersigned, since all ideas in Con-Law need to have names, otherwise how are we supposed to remember them?.
What might be an example of the Sheridan Slop-Over Doctrine at work, I wonder.
Making one up, I suppose one could imagine Congress prohibiting the possession or sale of war weapons, say on the basis of the Commerce Power and the power to regulate the armed services, where only, they, for example, may own tanks, fighter planes, and submarines.
If Congress declared in enacting the bill into law that it was only exercising Power A, when it also possessed a potentially valid Power B, it might be missing a bet. You can bet that the government lawyers wouldn't overlook the bet and would argue that even if the statute should be deemed unconstitutional as an exercise of Power A, it should nevertheless be upheld as an exercise of Power B.
Where things get really sticky is where Congress says: We're exercising Power A, these are our reasons, and this is our evidence. The Court, in recent years, has taken to acting not just like a Super legislature, but as a judge of Congress's evidence, even though the Court wasn't present at the trial of the evidence at the Congressional Committee hearings. See:
U.S. v. Morrison (2000) 529 US 598, in which the Court looked at Congress's evidence and found it wanting. In declaring the Violence Against Women Act (VAWA) unconstitutional, the Court was trying to protect the states, it said, even though 38 of them invited the legislation by allowing their Attorneys-General to submit testimonials and to appear before Congress to register support of the bill protective of women against violence. "Too anecdotal," the Court said of the evidence. Congress was relying on just stories.
Like what is Congress supposed to rely on if not testimony of citizens at hearings?
What does the Court rely on, if not stories?
What do you think an amicus curiae brief is if not a way of telling stories to the Court. The information presented in an amicus brief is not restricted to the findings of fact and conclusions of law at the trial of the case below. This business of what the Court may rely on as fact is the subject of an excellent review-of-Con-Law book by David L. Faigman, a professor at the competition down the street (whom I don't know, yet), Hastings Law School, where we buy our law books, entitled Laboratory of Justice (Times Books, Henry Holt and Co., 2004).
Boerne v. City of Flores (Texas) (1997) 521 US 527 held that Congress's power was also limited not just by the kind and quality of the evidence it considers when passing laws, but whether it is overreacting to the complaints made. Now says the conservative wing of the court, led by Chief Justice Rehnquist, Congress's reactions must not only closely fit the harm it is seeking to correct, but the statute must be in proportion to this harm.
There's no using an elephant gun to shoot a gnat, in other words. The term used by the Court was that the medicine, i.e. the remedial legislation, must be "congruent and proportional" to the disease to be cured.
The article below provides you with some insight into examining a statute for constitutionality.
Note also that even though Congress may have a particular power, the exercise of it might trigger a challenge under a competing constitutional clause, in this case, the First Amendment prohibition against the Establishment of a Religion by government. It states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
If Congress compels the states to accommodate to prisoner religious beliefs, is Congress violating the "make no law respecting the establishment of religion" provision?" Are the states violating the "free exercise" provision?
This is why we have a Court.
Every hockey game must have a referee.
Conflicts in the application of competing clauses of the Constitution are grist for the Con-Law Mill, meaning the business of the Supreme Court. Speaking of which, I see in today's news that the Ukrainian Supreme Court has held improper their recent stolen election. The Ukrainian Congress is preparing legislation to allow a do-over as we speak.
Our Supreme Court didn't do that. Ours gave us instead Bush v. Gore (2000), which gave us Bush v. Kerry (2000) .
Meanwhile, we're continuing to export Democracy to Iraq, at gunpoint, elections in January, in between the mortar attacks and suicide bomb blasts of civilians and the new security forces.
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Federal appeals court finds RLUIPA constitutional
The
United States Court of Appeals for the Eleventh Circuit yesterday ruled
that the Religious Land Use and Institutionalized Persons Act (RLUIPA)
is constitutional.
The Becket Fund for Religious Liberty --an
interfaith, nonpartisan, public-interest law firm dedicated to
protecting the free expression of all religious traditions--was the
attorney of record for Ralph Benning, an inmate at the Georgia State
Prison in Hancock. Correctional officials refused to provide Benning,
who practices the Jewish faith, with kosher food or allow him to wear a
yarmulke. Benning sued the State of Georgia and the Georgia Department
of Corrections under RLUIPA, a 2000 law that requires prisons receiving
federal funds to reasonably accommodate prisoners' religious exercise.
“Prisoners
should not be forced to check their religion, along with their civilian
clothing, at the jailhouse doorstep,” said Jared N. Leland, Media and
Legal Counsel for The Becket Fund. “In fact, religion is often the
root of rehabilitation and so prisoners should and must be free to
practice.”
“Because Congress properly exercised its spending
power by unambiguously conditioning the use of federal funds for state
prisons on the related accommodation of the religious exercise of
prisoners and that accommodation does not endorse a religious
viewpoint, we conclude that this section of RLUIPA was validly enacted
under the Spending Clause and does not violate either the Establishment
Clause or the Tenth Amendment,” Circuit Judge Pryor wrote in the
decision. “Both the protection of the religious exercise of prisoners
and their rehabilitation are rational goals of Congress, and those
goals are related to the use of federal funds for state prisons.”
The
court accepted The Becket Fund’s argument that RLUIPA is a permissible
accommodation of religious exercise and that upholding RLUIPA better
secures other government accommodations of religious exercise for all
people, not just prisoners. “A sweeping invalidation of all
accommodations of religion is wholly inconsistent with the history,
traditions, and laws of our nation,” Judge Pryor wrote. As The Becket
Fund has noted, accommodations around the country range from the U.S.
military's allowing Jews in the armed forces to wear yarmulkes, to many
states’ exemption of minors from underage drinking laws for religious
purposes.
“The Court’s decision is a victory for RLUIPA and,
more importantly, is a strong endorsement of the principle that there
is no constitutional barrier to laws that accommodate and lift burdens
on religious exercise,” said Derek Gaubatz, Senior Legal Counsel of The
Becket Fund for Religious Liberty. “God willing this is a preview of
how the Supreme Court will decide this same issue this term.”
In Cutter v. Wilkinson,
the Supreme Court will determine whether the prisoner provisions of the
law violate the Establishment Clause of the First Amendment.
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The above announcement is from a press release issued by the Becket Fund for Religious Liberty, located here.