Circularity in the Congruence and Proportionality Test?

[RJLipkin at aol.com]

Yes, Sam is right. 
 
        But, forgive me if I  bemoan the following language: "The  third step 
of our congruence‑and‑proportionality inquiry removes any doubt as to  
whether Title II is valid § 5 legislation. At this stage, we ask whether the  
rights and remedies created by Title II are congruent and proportional to the  
constitutional rights it purports to enforce and the record of constitutional  
violations adduced by Congress." (Lane, CJ Rehnquist,  dissenting).  This "third 
step" is virtually the entire test, that is,  steps one and two, as separate 
elements in the test, aren't needed at  all.
 
        I  haven't explored whether other cases employing the Section 5 test 
includes  anything like the above language, but the above language is  
troubling. If  Sam is right, and I agree that he is, why couldn't the point be stated 
as the  test for Section 5 enforcement which says "to satisfy the test for § 
5  legislation, we must we  ask whether the rights and remedies created by 
Title II are congruent and  proportional to the constitutional rights it purports 
to enforce and the record  of constitutional violations adduced by Congress"? 
Why break it down into a  three-step inquiry, where each step seems to be 
independent? How does  one grade  an essay answer that defined the Section 5 test 
as: (1) identifying the rights  violated, (2) show the historical pattern of 
violations, and (3) then apply the  congruence and proportionality. " My 
failure as a teacher I  suppose.
 
Thanks  Sam, 
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/_ (http://www.essentiallycontestedamerica.org/) 



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