Section 5 Legislation/Death Penalty

LoAndEd at AOL.COM LoAndEd at AOL.COM
Thu Jul 27 20:30:27 PDT 2000

Funny -- Larry Tribe's and David Barron's colleague, Daniel Meltzer,
addressed this very question this morning in House Testimony on how to
overcome the effects of Florida Prepaid and College Savings.  Prof. Meltzer
testified (correctly, in my view) that where the scope of the state conduct
that the section 5 statute prohibits is no broader than what the Court itself
would view (or has viewed) as unconstitutional, there is no need under
Boerne, Kimel, et al., for a congressional record documenting
unconstitutional state conduct.  The example that Prof. Meltzer invoked:  a
statute prohibiting the states from lynching, which would be within
Congress's section 5 power even if there were *no* modern reported cases.
The recently introduced Religious Land Use and Institutionalized Persons Act
(RLIUPA) (a narrower version of the Religious Liberty Protection Act) is
based largely on such a section 5 theory:  That bill would prohibit state
conduct (e.g., discrimination against religion; unreasonable state burdens on
religion; substantial burdens on religious exercise in a state's exercise of
a system of individualized exemptions (the Sherbert scenario that the Court
declined to overturn in Smith)) that the Court itself has viewed (or would
view) as unconstitutional; accordingly, it is unnecessary to look to a record
to support the exercise of section 5 power.

The problem in Sandy L.'s question, however, is the assumption that the Court
would *disagree* with Congress's conclusion that the State's execution of a
fetus over the objections of the woman is unconstitutional (either because,
per Prof. Tribe, the fetus is a "person" for such purposes, or because, per
Prof. Barron, it's cruel and unusual punishment).  In that case -- where the
Court rejects Congress's constitutional judgment -- no record would be
relevant, but for a different reason than under RLIUPA:  because the statute
would be, *not* a "prophylactic" to prevent conduct that the Court agrees is
unconstitutional, but instead, a statute that is *precisely* tailored
(congruent and proportional) to prohibit conduct that Congress, but not the
Court, deems unconstitutional.  Isn't that Boerne itself?  I agree that
Congress should be able to do this -- but then, I think Boerne was wrongly

Marty Lederman (in my personal capacity)

Larry Tribe writes:

> I think the problem Sandy Levinson poses existed with the patent legislation
>  in Florida Prepaid v. College Savings only because Congress abrogated state
>  sovereign immunity in a far broader category of cases than in those where
>  the states were demonstrably taking people's property without just
>  compensation. Ditto for Kimel and the ADEA. In the legislation to ban state
>  execution of pregnant women, however, the entirely simple remedy is
>  perfectly congruent with and proportional to the violation found by
>  Congress. Even if the violation would occur just a few times a decade
>  the congressional measure, that's no problem since the congressional
>  would kick in only in those few cases.

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