American Constitutionalism in Historical Perspective (packet)

Stewart majority: find that age is a qualification, so should be left to the states.

Brennan dissent: act is w/in the enforcement powers of Congress b/c it can look into what is an unfair burden. Looks at history, finds that some states have selected 18 as age of maturity (age for crim resp, marriage, and compulsory school attendance limit, forced to go to war). Arguing that Congress c’ve looked at all of these factors and det that 18 was the better decision and expanded to voting rts. See this as an expansion of rts, w/in congressional power to grant and render our conception of maturity more principled, coherent and rational. Ct c/n do this b/c 18 is unprincipled measure (some ppl aren’t mature at 18). Ct has fact-finding powers, practical remedies, etc. Complementary role of judiciary in minimal area and expansion by Congress.

Harlan concurred/dissent in part Argument to keep it remedial but d/n want substantive rts power in order to prevent one-way ratchet from not ratcheting up other ppl’s rts. This is heart of Marbury, up to judiciary to do this, congress is overriding this power. This isn’t just factual, ct wants to allow Congress to change meaning of the clause of Art I, §2. d/n protect minorities by allowing majoritarian legislatures to have this power.

Note: Maybe can argue that giving vote to 18 is really remedial. If giving minority a rt then d/n address fears of Fed. #10. Ct is checking Congress to prevent infringement but is ok when Congress is increasing rts (Dworkin). Dark power of judicial review is to cut back powers of Congress to enforce human rts. But do we want Congress to vote on what rt they want most and allow interest groups to reign?

City of Boerne v. Flores, 1997: struck down Religious Freedom Restoration Act of 1993 as beyond cong authority to enact. Legislation in response to Employment Div. v. Smith (facially neutral anti-drug law so no free exercise exemption, anti-originalist opinion, w/n harm others-- d/n even look at compelling state purpose) seeking to reinstate compelling state purpose prong affirmed in Sherbert. In core free exercise interest b/c is pt of religious ritual. W/in its Marbury powers, Congress must back off.

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