There is not a shadow of right in the general government to intermeddle with religion.

CUTTER v. WILKINSON

The words of James Madison in defense of the Constitution at the Virginia Ratifying Convention: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” General Defense of the Constitution (June 12, 1788), reprinted in 11 Papers of James Madison 130 (R. Rutland, C. Hobson, W. Rachal, &J. Sisson eds. 1977). Ohioalso relies on James Iredell’s statement discussing the Religious Test Clause at the North Carolina Ratifying Convention:

“[Congress] certainly [has] no authority to interfere in the establishment of any religion whatsoever . . . . Is there any power given to Congress in matters of relig­ion? Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm . . . . If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Con­stitution, and which the people would not obey.” Debate in North Carolina Ratifying Convention (June30, 1788), in 5 Founders’ Constitution 90 (P. Kurland & R. Lerner eds. 1987).

These quotations do not establish the Framers’ beliefs about the scope of the Establishment Clause. Instead, they demonstrate only that some of the Framers may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority. Ohio’s Spending Clause and Commerce Clause challenges, therefore, may well have merit. See n. 2, supra.

In any event, Ohio has not shown that the Establish­ment Clause codified Madison’s or Iredell’s view that the Federal Government could not legislate regarding religion. An unenacted version of the Clause, proposed in the House of Representatives, demonstrates the opposite. It provided that “Congress shall make no laws touching religion, or infringing the rights of conscience.” 1 Annals of Cong. 731 (1789); see also Wallace v. Jaffree, 472 U. S. 38, 96–97 (1985) (REHNQUIST, J., dissenting). The words ultimately adopted, “Congress shall make no law respecting an estab­lishment of religion,” “identified a position from which [Madison] had once sought to distinguish his own,” Ham­burger, supra, at 106. Whatever he thought of those words, “he clearly did not mind language less severe than that which he had [previously] used.” Ibid. The version of the Clause finally adopted is narrower than Ohioclaims.

Nor does the other historical evidence on which Ohio relies—Joseph Story’s Commentaries on the Constitution—prove its theory. Leaving aside the problems with relying on this source as an indicator of the original un­derstanding, see U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (THOMAS, J., dissenting), it is unper­suasive in its own right. Justice Story did say that “the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Commentaries on the Constitution of the United States 702–703 (1833) (reprinted 1987). In context, however, his statement concerned only Congress’ inability to legislate with respect to religious establishment. See id., at 701 (“The real object of the amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national gov­ernment”); id., at 702 (“[I]t was deemed advisable to ex­clude from the national government all power to act upon the subject . . . . It was impossible, that there should not arise perpetual strife and perpetual jealousy on the sub­ject of ecclesiastical ascendancy, if the national govern­ment were left free to create a religious establishment”).

In short, the view that the Establishment Clause pre­cludes Congress from legislating respecting religion lacks historical provenance, at least based on the history of which I am aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated pow­ers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws “respecting an establishment of religion”; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a relig­ion any more than it could preclude a State from establish­ing a religion.

II On its face—the relevant inquiry, as this is a facial challenge—RLUIPA is not a law “respecting an establish­ment of religion.” RLUIPA provides, as relevant: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person,” first, “further[s] a compelling governmental interest,” and second, “is the least restrictive means of furthering that compel­ling governmental interest.” 42 U. S. C. §§2000cc–1(a)(1)– (2).