"Congruence" and "Proportionality"

[Conkle, Daniel O.]

Mark Tushnet asks:  "Incidentally, can anyone explain to me the difference
between congruence and proportionality.  Boerne uses the word congruence as
follows:  'There must be a congruence between the means used and the ends to
be achieved.'  Is that different from 'The means used must be proportional
to the ends to be achieved'?"

Here's one possible interpretation of these terms, an interpretation
suggesting that congruence and proportionality are closely related, but not
quite the same thing.  (This is drawn, sans footnotes, from an article that
I published in the Ark.-Little Rock symposium on Boerne - 20 U. Ark. Little
Rock L.J.. 633, 641-42 (1998).)

Boerne's requirement of "congruence" demands that the congressional statute,
viewed as an attempt to prevent or remedy constitutional violations, not be
unduly overinclusive.  Congress certainly need not limit itself to
individual violations of the Constitution.  Boerne explicitly reaffirms that
Congress is free to write more general laws, explaining that "[p]reventive
measures prohibiting certain types of laws may be appropriate when there is
reason to believe that many of the laws affected by the congressional
enactment have a significant likelihood of being unconstitutional."  But if
Congress adopts a law that indiscriminately sweeps in a broad array of
otherwise lawful state and local practices, the very breadth of the law
suggests that it cannot be understood as remedial.

A remedy is "proportional" if it is justified by the magnitude of the
constitutional injury.  "Strong measures appropriate to address one harm,"
the Court wrote in Boerne, "may be an unwarranted response to another,
lesser one."  Properly understood, however, the requirement of
proportionality is not an independent variable; instead, it is closely
related to the requirement of congruence.  In particular, the *nature and
extent* of the constitutional problem being redressed affect the *degree* of
overinclusiveness that is permissible.  A extremely broad congressional
prohibition may be rational if there is evidence of serious and widespread
constitutional violations by state and local governments, especially if
those violations would be difficult to prove through case-by-case
litigation.  For example, as the Court explained in Boerne, "strong remedial
and preventive measures" have been upheld when they have been designed to
redress "the widespread and persisting deprivation of constitutional rights
resulting from this country's history of racial discrimination."
Conversely, if the constitutional problem is less severe, Congress must
proceed more cautiously.  Indeed, the less serious the constitutional
problem, the more likely it is that broad legislation is designed not to
remedy that problem, but instead to accomplish another end, such as the
substantive redefinition of constitutional rights.

Dan Conkle
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Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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