Sanford Levinson SLevinson at
Sun Nov 28 20:02:53 PST 2004

Sam writes:


A couple of points:

1.  I'm not sure what "McCulloch-like latitude" means.  Even when I was
a government lawyer quoting it in defense of broad congressional power,
I always found McCulloch to be an incredibly ambiguous case, one that
can readily be read to support Boerne.

I agree that McCulloch is incredibly ambiguous.  There is a real tension, for example, between paragraph 38 ("let the end
be legitimate....") and paragraph 42 (the "pretext" paragraph), and the Hammer-era Court demonstrated what could be done with the latter.  It is clear, though, that for the Brennan Court of the 1960s, McCulloch meant paragraph 38, with judicial review reduced to a minimum save for the footnote 10 "ratchet."  I'm not sure that McCulloch "can readily be read to support Boerne" unless one emphasizes Marshall's thunderous statement in paragraph 1 that "by this court alone can the decision be made."  

2.  Eugene is right to point out the positions of Justices Stevens and
Ginsburg in Boerne.  Sure, I think they thought RFRA was
constitutionally flawed for any number of reasons, but they could easily
have declined to join Justice Kennedy's broadly written majority if they
had wanted to.  What I've always thought about this is that Stevens and
Ginsburg don't want to give Congress a blank check any more than the
"Federalist Five" do.  Maybe they're afraid of abortion or
property-rights legislation, or maybe they just believe in robust
judicial review as an ideological or theoretical matter.  Stevens and
Ginsburg have uniformly been on Congress's side in these cases, aside
from Boerne.  But that's in part because the cases have all come up in
the Eleventh Amendment context, and Stevens and Ginsburg (and Souter and
Breyer) *have* been clear that Congress has a blank check to abrogate
state sovereign immunity.


But, of course, they can abrogate the immunity, under current doctrine, only if the statutes pass muster under the Fourteenth Amendment.   And I gather that the point of the dissents in Garrett is that Congress indeed does have the requisite power under the 14th Amendment to discern new protected classes or "fundamental right" (i.e., the right not to be unduly discriminated against because of one's disability").  I'm curious whether Sam, who knows far more about this area of law than I do, can discern any plausible difference between Garrett and Lane other than O'Connor's completely idiosyncratic belief that there is indeed a difference.  


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