Circularity in the Congruence and Proportionality Test?

[Margo Schlanger]

I'm far from a fan of the congruence and proportionality test, but I
don't find it circular at all.  The idea is that to the extent a remedy
goes beyond merely repeating the constitutional mandate (no cruel and
unusual punishments, say), or concretizing that mandate, following the
Supreme Court's lead (no deliberate indifference to serious medical
needs, say), the remedy must be fairly tightly connected to the
violation.  It can, that is, be aimed at avoiding violations
(prophylaxis -- have doctors in prisons) or curing them (same), but must
be closely connected to the violation itself.  Talmudists might talk
about the size of the fence around the Torah's prohibition.  

 

____________________________________
Margo Schlanger
Professor of Law
Director, Civil Rights Litigation Clearinghouse
(http://clearinghouse.wustl.edu)
Washington University in St. Louis
One Brookings Drive
CB 1120
St. Louis, MO  63130
314-935-8242
mschlanger at wulaw.wustl.edu
website: http://schlanger.wustl.edu 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Tuesday, December 11, 2007 8:31 AM
To: Hamilton02 at aol.com; CONLAWPROF at lists.ucla.edu
Subject: Re: Circularity in the Congruence and Proportionality Test?

 

Marci writes:

 

If the constitutional violations are persistent and outrageous, Congress
has more power to alter otherwise constitutional state action.  If not,
the state has less power.  There is also an element, evidenced by the
majority in Lane, of weighing the importance of constitutional rights.
The more fundamental a right, the more power Congress is likely to have.

 

        I am not at all now challenging the above statement. I'm not
questioning the implicit balancing mechanism involved in this test.  

        What seems circular is this: If we define "the congruence and
proportionality" inquiry as requiring three elements: (1) identifying
the rights being violated, (2) a historical pattern of violations, and
(3) whether the remedy(ies) are congruent and proportional to the
constitutional rights it purports to enforce and the record of
constitutional violations adduced by Congress, then (3) simply either
recapitulates (1) and (2) or the definition of "the congruence and
proportionality" inquiry is defined in part by (3) which makes it a
definition, if it is one at all, that uses the term to be defined as
part of the definition. That is, it seems to me, either a tautological
definition or a circular test. Alternatively stated and oversimplified
to be sure, isn't the concept of "congruence and proportionality" being
explicated by saying a "congruent and proportionate" remedy is one,
inter alia, that is congruent and proportionate. (That's not terribly
illuminating until we know what "congruence and proportionality" means,
which I thought was the purpose of articulating the three step procedure
in the first place.)  It seems to define X--congruence and
proportionality--in terms of  X--congruence and proportionality.  That's
not possible, is it? If that's not what it's not going on, I'd welcome
an explanation.

 

Thanks,
Bobby
      
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
<http://ratiojuris.blogspot.com/> 
Essentially Contested America, Editor-In-Chief
http://www.essentiallycontestedamerica.org/





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