Scalia disavows Boerne

Stuart BUCK stuartbuck at
Mon May 17 18:11:27 PDT 2004

The most important news of the day is Scalia's disavowal of the test 
invented in Boerne.  I suspect that his replacement is even less consistent 
with the original intent of Section 5 , which certainly wasn't to bind 
Congress to every substantive interpretation of the Supreme Court; but 
that's another issue.  Anyway, from his dissent in Tennessee v. Lane:

I joined the Court's opinion in Boerne with some misgiving.  I have 
generally rejected tests based on such malleable standards as 
"proportionality," because they have a way of turning into vehicles for the 
implementation of individual judges' policy preferences. [Citations]
Even so, I signed on to the "congruence and proportionality" test in Boerne 
. . . . [More discussion of intervening cases]

I yield to the lessons of experience. The "congruence and proportionality" 
standard, like all such flabby tests, is a standing invitation to judicial 
arbitrariness and policydriven decisionmaking. Worse still, it casts this 
Court in the role of Congress's taskmaster. Under it, the courts (and 
ultimately this Court) must regularly check Congress's homework to make sure 
that it has identified sufficient constitutional violations to make its 
remedy congruent and proportional. As a general matter, we are
ill advised to adopt or adhere to constitutional rules that bring us into 
constant conflict with a coequal branch of Government. And when conflict is 
unavoidable, we should not come to do battle with the United States Congress 
armed only with a test ("congruence and proportionality")
that has no demonstrable basis in the text of the Constitution and cannot 
objectively be shown to have been met or failed. As I wrote for the Court in 
an earlier case, "low walls and vague distinctions will not be judicially 
defensible in the heat of interbranch conflict." Plaut v. Spendthrift
Farm, Inc., 514 U. S. 211, 239 (1995).

I would replace "congruence and proportionality" with another test: one that 
provides a clear, enforceable limitation supported by the text of §5. 
Section 5 grants Congress the power "to enforce, by appropriate 
legislation," the other provisions of the Fourteenth Amendment. U. S.
Const., Amdt. 14 (emphasis added). Morgan notwithstanding, one does not, 
within any normal meaning of the term, "enforce" a prohibition by issuing a 
still broader prohibition directed to the same end. One does not, for 
example, "enforce" a 55-mile-per-hour speed limit by imposing a 
45-mile-per-hour speed limit --even though that is indeed directed to the 
same end of automotive
safety and will undoubtedly result in many fewer violations of the 
55-mile-per-hour limit.

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