RIGHTS & LIMITS
Rights and Congress — what it can add, and what it can’t take away
Updated
Two kinds of rights meet in Congress. The Constitution’s own rights, such as free speech, limit what Congress may do, and only a constitutional amendment can change them. Rights created by law, such as the right not to be fired because of one’s religion, are Congress’s to write. The Supreme Court decides where one ends and the other begins.
- 1
The First Amendment limits Congress
It begins “Congress shall make no law”: none establishing a religion or prohibiting its free exercise, and none abridging the freedom of speech or of the press, the right to assemble peaceably or to petition the government. The courts can strike down a law that does.
- 2
Congress can add protections
Congress can protect more than the Constitution requires. The Religious Freedom Restoration Act of 1993 says the federal government (and that of D.C. and the territories) may not substantially burden a person’s religious exercise, even through a rule that applies to everyone, unless it is the least restrictive way to serve a compelling interest. People can raise it in court.
- 3
Enforcing the 14th Amendment
The 14th Amendment bars states from denying anyone due process or the equal protection of the laws, and its Section 5 gives Congress the power to enforce it by appropriate legislation. Laws that hold state governments to a right often rest on this power, as the religious freedom law first did.
- 4
Where the courts draw the line
In City of Boerne v. Flores (1997) the Supreme Court held that Section 5 lets Congress enforce rights, not change what they protect: a law must be congruent and proportional to the wrongs it targets. It struck down the religious freedom law as applied to the states; it now binds the federal government.