This Article examines the extent to which the Court's power "to say what the law is"" on the sensitive subject of religious liberty has been, and continues to be, constrained by the lawmaking powers of Congress and the states. Though the topic is obviously an important one, it has not been examined systematically. Most of the case law and commentary focuses on the limits which the Constitution imposes, or should be held to impose, on the powers of Congress and the states. The Court's power to define those limits appears, by contrast, to be one of those "fundamental assumptions [that] 'appear[s] so obvious that people do not know what they are assuming because no other way of putting things has ever occurred to them."
Robert A. Destro, ‘By What Right?’: The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters ‘Touching’ Religion, 29 IND. L. REV. 1 (1996).