Not 'The Most Powerful Argument' About the Meaning of Free Exercise: Congressional Power, 'Facial' Review, and Why Rosenkranz’ Subjects Theory Does Not Support Smith

Abstract:     
In his innovative article The Subjects of the Constitution, Nicholas Rosenkranz asserts that an insight – various constitutional provisions are directed at specific government actors – compels a variety of doctrinal consequences. In particular, he claims that judicial review under provisions addressed to Congress, such as the First Amendment and the Commerce Clause, should be restricted to the text of the law. This theory, he says, is “the most powerful argument” for the Supreme Court’s ruling in Employment Division of Oregon v. Smith that the First Amendment’s Free Exercise Clause does not protect religiously motivated conduct from neutral laws.

This is wrong, for three reasons: First, it is not so clear as Rosenkranz suggests that the First Amendment applies only to Congress. Second, logic and grammar do not compel limiting judicial review of Congressional power to the statutory text. Third, Rosenkranz’ insight does not lead to a focus constitutional prohibitions on Congress the actor, but rather to constitutional regulation of legislation.

Finally, even accepting Rosenkranz’ conclusions, I explore further implications and tensions of Rosenkranz’ substantive claims about Congressional powers.

Number of Pages in PDF File: 57

Keywords: judicial review, facial challenge, as-applied challenge, constitutional interpretation, Rosenkranz, subjects of the Constitution, free exercise, Employment Division of Oregon v. Smith

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