American Constitutionalism in Historical Perspective (packet)

§5 powers to enforce privacy, free speech, and religious freedom of 1^st A. Fact-finding shows there is a lot religious bigotry and RFRA would protect minority religious views. If no compelling state purpose as applied, must give them an exemption (no compelling state purpose w/ Indians in Smith)

Kennedy: only allow remedial powers of Cong but not substantive. RFRA i/n remedial b/c not proportnl or congruent to scope of harm (too broad). No fact evidence of rel bigotry, rel grps are pol powerful (but these are MAJORITY religions who have this power!!) Congress c/n make normative view that need this protection, RFRA is in excess of remedial powers. Takes Harlan’s approach.

1. 
   Statute may be more invidious than we think, b/c it may be infringe on other competing rts (rts of privacy such as denying birth control on rel grounds anti-gay msgs in workplace)
   

US v. Morrison: d/n involve commercial activity so Violence against Women Act unconst. under CC. §5 arg in second part of case that there had been persistent bias in the state justice system. Feminist outrages so Congress says this is gender-related bias and universities must send this msg to athletes that rape is NOT okay. Congress does elaborate fact-finding that violence vs. women is present. Want to provide remedy for victims on fed level. Gender is a suspect class, so Congress should be able to address this remedially.

1. 
   Cites Civil Rts cases although it’s been overruled. Race cases undisturbed, d/n need state action (14^th A has broad scope of state action and 13^th A just limited to race). But gender is a diff case and w/n apply 13^th A to women and gives narrow view of 14^th A state action req. Gender i/n as suspect as race, so struck down b/c would’ve applied to a private party.
   
2. 
   Breyer/Stevens dissent: element of state action here, can find it gender area if can find it in race area. Elaborate fact-finding showed symbiotic links b/w state and private parties. S/n be so restrictive w/ a remedial case. See Brennan in Guest: Congress should have necessary and proper powers to enforce rts when state cts won’t.
   

Following cases all involve §5 enforcement powers.