Re: Pres. Bush Supports Intelligent Design

[Steven Jamar]

There is a difference between grants of power and limits on that power, isn't there?  At least with respect to what Congress can address.  Merely because something is within the Beckwithian concept of "federal concern" does not give Congress the power to act.  Even when Congress has the power to act, e.g., 14th Amendment, the Court has indicated a willingness, nay desire, to limit the scope of that power. Congress has been granted no such power in the First Amendment. Any power touching on religion exercised by Congress would need to come under some other grant, such as equal protection or commerce clause.  And if Congress did act under one of its powers in the area of religion, then its actions would be limited by the first amendment.  Title VII is a commerce clause power bit of legislation -- and banning discrimination on the basis of religion in the workplace seems not a lot like establishing religion, though it could limit the free exercise of employers in some instances (free to avoid being "unevenly yoked" or to use the Bible as the business operating manual or to require employees to be exposed to employer's witnessing, etc.). Steve Ed: Cause and effect correlations are extremely complicated on issues such as these, since there are a variety of reasons that American students may “under perform.”  I’m always suspicious of the use of such data, regardless of who offers it. Having said that, I believe that the Supreme Court is in fact a branch of the federal government, and if it touches a matter, no matter how small or insignificant in a local setting, it elevates the issue to a federal one. After all, in order to reach its holding it must appeal to federal principles and make the argument that those principles apply in this local case.  So, Congress may address the issue if it so chooses, since by the court addressing it the court is in fact saying that the issue is of federal concern.  It would be odd, to say the least, that it is a matter of federal law but feder! al lawmakers cannot address it.   Frank --  Prof. Steven D. Jamar                                     vox:  202-806-8017 Howard University School of Law                           fax:  202-806-8428 2900 Van Ness Street NW                            mailto:[EMAIL PROTECTED] Washington, DC  20008           http://www.law.howard.edu/faculty/pages/jamar "Years ago my mother used to say to me... 'In this world Elwood' ... She always used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may quote me." --Elwood P. Dowd - Mary Chase, "Harvey", 1950

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