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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, September 13, 2009 ::
    "Where the rights of others are not involved, however," writes Prof. Michael McConnell is his great article in 103 Harv.L.Rev., describing the view of free exercise of religion taken in the early state constitutions, "the free exercise right prevails." (103 Harv.L.Rev. 1409, 1464)

    Pardon me, but in what kind of legislation are the rights of others not involved?

    Oh I know -- in lots and lots of laws and regulations. But in saying so, all we're saying is that we don't like those laws and regulations, that we'd vote against them, that we're in the market for politicians who will abolish them, etc. etc. I.o.w., we're making a LEGISLATIVE judgment.

    But within the range of decisions that COURTS are allowed to make, what on God's green earth is the difference between a law in which "the rights of others are not involved," and any other kind of other law? Unless perhaps a "law in which the rights of others are not involved" is a completely irrational law that would fail the most lenient rational basis review -- thus de-necessitating the strict scrutiny for which McConnell is arguing.

    :: David M. Wagner 10:01 PM [+] ::

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