Congruence, Proportionality, and Dickerson

[Ann Althouse]

I think if they have the evidence that the actual right (the definition of
which is controlled by the SCt) is being violated, Congress can make a
remedy proportionate to the harm shown by the evidence. A problem is that if
Strickland equals the statement of what the right is, there may be no room
left to make a remedy. The remedy must be designed to do no more than to
protect the right. They don't get an extra boost of power and they don't get
the power to say what they think the right is.

(Not my endorsement--just an attempt to read the cases.)

Ann


on 3/13/01 5:30 PM, Susan Bandes at sbandes at CONDOR.DEPAUL.EDU wrote:

> Evan--yes, thanks for setting me straight. Regardless of whether the state
> is the defendant, a statute has to be congruent and proportional to the
> harm if it exceeds the bounds of Section 1. My question, then, is really
> about what exceeds the bounds of Section 1. If, for example, we assume that
> Congress has ample evidence of the inadequacy of the current (Strickland)
> standard for protecting sixth amendment rights in capital cases, can it
> legislate based on its own reading of what the sixth amendment requires in
> capital cases, or must we assume, based on Strickland, that any legislation
> that fails to exactly track Strickland must exceed the 6th amendment
> guarantee and must therefore meet the congruence test?
>
> Susan Bandes
>
>
>
> At 05:12 PM 3/13/01 -0500, you wrote:
>
>> I wonder about the apparent premise of this question, which seems to be
>> that the congruence and proportionality test applies only to a section 5
>> measure that purports to abrogate state sovereign immunity (and thus would
>> not apply to a measure that regulates local police departments which enjoy
>> no such immunity).  I would have thought that the Court's congruence and
>> proportionality test applies to all Section 5 measures whether or not
>> abrogation is involved -- for example, in both Boerne and Morrison, where
>> the Court asked whether section 5 justified a measure that was considered
>> not to otherwise lie within Congress's Article I authority (Morrison
>> because the Court decided so; Boerne because the law was defended only on
>> section 5 grounds).  I don't read the paragraph in Garrett (stating that
>> record evidence of municipal discrimination is irrelevant to the ADA
>> section 5 inquiry) as changing that, cryptic and enigmatic though it
>> is.  What sense would it make to apply the congruent and proportionality
>> test only when Congress is abrogating state immunity, as opposed to
>> whenever Congress is regulating states qua states pursuant to their section
>> 5 authority to enforce the 14th A's guarantees?
>>
>> Evan
>>
>>
>> Professor Evan Caminker
>> University of Michigan Law School
>> 625 South State Street, Ann Arbor, MI  48109-1215
>> ph:  734-763-5695;  fax: 734-763-9375