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TENNESSEE, PETITIONER v. GEORGE LANE et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
[May 17, 2004]
Justice Scalia, dissenting.
Section 5 of the Fourteenth
Amendment provides that Congress shall have power to
enforce, by appropriate legislation, the provisions of
that Amendmentincluding, of course, the Amendments
Equal Protection and Due Process Clauses. In Katzenbach
v. Morgan, 384
U.S. 641 (1966), we decided that Congress could, under this
provision, forbid English literacy tests for Puerto Rican
voters in New York State who met certain educational criteria.
Though those tests were not themselves in violation of the Fourteenth
Amendment, we held that §5 authorizes prophylactic
legislationthat is, legislation that proscribes
facially constitutional conduct, Nevada Dept. of Human
Resources v. Hibbs, 538 U.S. 721, 728
(2003), when Congress determines such proscription is desirable
The Morgan opinion followed close upon our decision in South Carolina v. Katzenbach, 383 U.S. 301 (1966), which had upheld prophylactic application of the similarly worded enforce provision of the Fifteenth Amendment (§2) to challenged provisions of the Voting Rights Act of 1965. But the Fourteenth Amendment, unlike the Fifteenth, is not limited to denial of the franchise and not limited to the denial of other rights on the basis of race. In City of Boerne v. Flores, 521 U.S. 507 (1997), we confronted Congresss inevitable expansion of the Fourteenth Amendment, as interpreted in Morgan, beyond the field of racial discrimination.1 There Congress had sought, in the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., to impose upon the States an interpretation of the First Amendments Free Exercise Clause that this Court had explicitly rejected. To avoid placing in congressional hands effective power to rewrite the Bill of Rights through the medium of §5, we formulated the congruence and proportionality test for determining what legislation is appropriate. When Congress enacts prophylactic legislation, we said, there must be proportionality or congruence between the means adopted and the legitimate end to be achieved. 521 U.S., at 533.
I joined the Courts 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. See, e.g., Ewing v.
U.S. 11, 3132 (2003) (Scalia, J., concurring in
judgment) (declining to apply a proportionality
test to the Eighth
Amendments ban on cruel and unusual punishment);
Stenberg v. Carhart, 530 U.S. 914,
954956 (2000) (Scalia, J., dissenting) (declining to
apply the undue burden standard of Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992));
BMW of North America, Inc. v. Gore, 517 U.S. 559, 599
(1996) (Scalia, J., dissenting) (declining to apply a
reasonableness test to punitive damages under the
Due Process Clause). Even so, I signed on to the
congruence and proportionality test in
Boerne, and adhered to it in later cases: Florida
Prepaid Postsecondary Ed. Expense Bd. v. College Savings
Bank, 527 U.S.
627 (1999), where we held that the provisions of the Patent
and Plant Variety Protection Remedy Clarification Act, 35 U.S.C. §
271(h), 296(a), were
But these cases were soon followed by Nevada Dept. of Human Resources v. Hibbs, in which the Court held that the Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U.S.C. § 2612 et seq., which required States to provide their employees up to 12 work weeks of unpaid leave (for various purposes) annually, was congruent and proportional to its remedial object [of preventing sex discrimination], and can be understood as responsive to, or designed to prevent, unconstitutional behavior. 538 U.S., at 740 (internal quotation marks omitted). I joined Justice Kennedys dissent, which established (conclusively, I thought) that Congress had identified no unconstitutional state action to which the statute could conceivably be a proportional response. And now we have todays decision, holding that Title II of the ADA is congruent and proportional to the remediation of constitutional violations, in the face of what seems to me a compelling demonstration of the opposite by The Chief Justices dissent.
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 policy-driven decisionmaking. Worse still, it casts this Court in the role of Congresss taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congresss 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 testone 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 limiteven 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. And one
does not enforce the right of access to the courts
at issue in this case, see ante, at 19, by requiring
that disabled persons be provided access to all of the
services, programs, or activities furnished or
conducted by the State, 42 U.S.C. §
12132. That is simply not what the power to enforce
meansor ever meant. The 1860 edition of Noah
Websters American Dictionary of the English Language,
current when the Fourteenth
Amendment was adopted, defined enforce as:
To put in execution; to cause to take effect; as, to
enforce the laws. Id., at 396. See also
J. Worcester, Dictionary of the English Language 484 (1860)
(To put in force; to cause to be applied or executed; as,
To enforce a law
Morgan asserted that this commonsense interpretation would confine the legislative power . . . to the insignificant role of abrogating only those state laws that the judicial branch was prepared to adjudge unconstitutional, or of merely informing the judgment of the judiciary by particularizing the majestic generalities of §1 of the Amendment. 384 U.S., at 648649. That is not so. One must remember that in 1866 the lower federal courts had no general jurisdiction of cases alleging a deprivation of rights secured by the Constitution. R. Berger, Government By Judiciary 147 (2d ed. 1997). If, just after the Fourteenth Amendment was ratified, a State had enacted a law imposing racially discriminatory literacy tests (different questions for different races) a citizen prejudiced by such a test would have had no means of asserting his constitutional right to be free of it. Section 5 authorizes Congress to create a cause of action through which the citizen may vindicate his Fourteenth Amendment rights. One of the first pieces of legislation passed under Congresss §5 power was the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, entitled An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes. Section 1 of that Act, later codified as Rev. Stat. §1979, 42 U.S.C. § 1983 authorized a cause of action against any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States. 17 Stat. 13. Section 5 would also authorize measures that do not restrict the States substantive scope of action but impose requirements directly related to the facilitation of enforcementfor example, reporting requirements that would enable violations of the Fourteenth Amendment to be identified.2 But what §5 does not authorize is so-called prophylactic measures, prohibiting primary conduct that is itself not forbidden by the Fourteenth Amendment.
The major impediment to the approach I have suggested is stare decisis. A lot of water has gone under the bridge since Morgan, and many important and well-accepted measures, such as the Voting Rights Act, assume the validity of Morgan and South Carolina. As Prof. Archibald Cox put it in his Supreme Court Foreword: The etymological meaning of section 5 may favor the narrower reading. Literally, to enforce means to compel performance of the obligations imposed; but the linguistic argument lost much of its force once the South Carolina and Morgan cases decided that the power to enforce embraces any measure appropriate to effectuating the performance of the states constitutional duty. Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L. Rev. 91, 110111 (1966).
However, South Carolina and
Morgan, all of our later cases except Hibbs that
give an expansive meaning to enforce in §5 of
Amendment, and all of our earlier cases that even suggest
such an expansive meaning in dicta, involved congressional
measures that were directed exclusively against, or were used
in the particular case to remedy, racial discrimination.
See Oregon v. Mitchell, 400 U.S. 112 (1970)
(see discussion infra); Ex parte Virginia, 100 U.S. 339 (1880)
(dictum in a case involving a statute that imposed criminal
penalties for officials racial discrimination in jury
selection); Strauder v. West Virginia, 100 U.S. 303,
311312 (1880) (dictum in a case involving a statute that
permitted removal to federal court of a black mans claim
that his jury had been selected in a racially discriminatory
manner); Virginia v. Rives, 100 U.S. 313, 318
(1880) (dictum in a racial discrimination case involving the
same statute). See also City of Rome v. United
States, 446 U.S.
156, 173178 (1980) (upholding as valid legislation
under §2 of the Fifteenth Amendment
the most sweeping provisions of the Voting Rights Act of
1965); Jones v. Alfred H. Mayer Co., 392 U.S. 409,
(upholding a law, 42 U.S.C. § 1982 banning public or private racial discrimination in the sale and rental of prop-
erty as appropriate legislation under §2 of the Thirteenth Amendment).
Giving §5 more expansive scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the Fourteenth Amendment a priority of attention that this Court envisioned from the beginning, and that has repeatedly been reflected in our opinions. In the Slaughter-House Cases, 16 Wall. 36, 81 (1873), the Courts first confrontation with the Fourteenth Amendment, we said the following with respect to the Equal Protection Clause:
We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.
Racial discrimination was the practice at issue in the early cases (cited in Morgan) that gave such an expansive description of the effects of §5. See 384 U.S., at 648 (citing Ex parte Virginia); 384 U.S., at 651 (citing Strauder v. West Virginia, and Virginia v. Rives).3 In those early days, bear in mind, the guarantee of equal protection had not been extended beyond race to sex, age, and the many other categories it now covers. Also still to be developed were the incorporation doctrine (which holds that the Fourteenth Amendment incorporates and applies against the States the Bill of Rights, see Duncan v. Louisiana, 391 U.S. 145, 147148 (1968)) and the doctrine of so-called substantive due process (which holds that the Fourteenth Amendments Due Process Clause protects unenumerated liberties, see generally Lawrence v. Texas, 539 U.S. 558 (2003); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)). Thus, the Fourteenth Amendment did not include the many guarantees that it now provides. In such a seemingly limited context, it did not appear to be a massive expansion of congressional power to interpret §5 broadly. Broad interpretation was particularly appropriate with regard to racial discrimination, since that was the principal evil against which the Equal Protection Clause was directed, and the principal constitutional prohibition that some of the States stubbornly ignored. The former is still true, and the latter remained true at least as late as Morgan.
When congressional regulation has not been targeted at racial discrimination, we have given narrower scope to §5. In Oregon v. Mitchell, 400 U.S. 112 (1970), the Court upheld, under §2 of the Fifteenth Amendment, that provision of the Voting Rights Act Amendments of 1970, 84 Stat. 314, which barred literacy tests and similar voter-eligibility requirementsclassic tools of the racial discrimination in voting that the Fifteenth Amendment forbids; but found to be beyond the §5 power of the Fourteenth Amendment the provision that lowered the voting age from 21 to 18 in state elections. See 400 U.S., at 124130 (opinion of Black, J.); id., at 153154 (Harlan, J., concurring in part and dissenting in part); id., at 293296 (Stewart, J., joined by Burger, C. J., and Blackmun, J., concurring in part and dissenting in part). A third provision, which forbade States from disqualifying voters by reason of residency requirements, was also upheldbut only a minority of the Justices believed that §5 was adequate authority. Justice Blacks opinion in that case described exactly the line I am drawing here, suggesting that Congresss enforcement power is broadest when directed to the goal of eliminating discrimination on account of race. Id., at 130. And of course the results reached in Boerne, Florida Prepaid, Kimel, Morrison, and Garrett are consistent with the narrower compass afforded congressional regulation that does not protect against or prevent racial discrimination.
Thus, principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic §5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. See Hibbs, 538 U.S., at 741743 (Scalia, J., dissenting); Morrison, 529 U.S., at 626627; Morgan, 384 U.S., at 666667, 669, 670671 (Harlan, J., dissenting).4 I would also adhere to the requirement that the prophylactic remedy predicated upon such state violations must be directed against the States or state actors rather than the public at large. See Morrison, supra, at 625626. And I would not, of course, permit any congressional measures that violate other provisions of the Constitution. When those requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under §5 to prevent or remedy racial discrimination by the States.
I shall also not subject to congruence and proportionality analysis congressional action under §5 that is not directed to racial discrimination. Rather, I shall give full effect to that action when it consists of enforcement of the provisions of the Fourteenth Amendment, within the broad but not unlimited meaning of that term I have described above. When it goes beyond enforcement to prophylaxis, however, I shall consider it ultra vires. The present legislation is plainly of the latter sort.
Requiring access for disabled persons
to all public buildings cannot remotely be considered a means
of enforcing the Fourteenth
Amendment. The considerations of long accepted practice
and of policy that sanctioned such distortion of language where
state racial discrimination is at issue do not apply in this
field of social policy far removed from the principal object of
the Civil War Amendments. The seductive plausibility of
single steps in a chain of evolutionary development of a legal
rule is often not perceived until a third, fourth, or fifth
logical extension occurs. Each step, when taken,
appeared a reasonable step in relation to that which preceded
it, although the aggregate or end result is one that would
never have been seriously considered in the first instance.
This kind of gestative propensity calls for the line
drawing familiar in the judicial, as in the legislative
process: thus far but not beyond.
1. Congress had previously attempted such an extension in the Voting Rights Act Amendments of 1970, 84 Stat. 318, which sought to lower the voting age in state elections from 21 to 18. This extension was rejected, but in three separate opinions, none of which commanded a majority of the Court. See infra, at 10.
2. Professor Tribes treatise gives some examples of such measures that facilitate enforcement in the context of the Fifteenth Amendment: The Civil Rights Act of 1957, 71 Stat. 634, authorized the Attorney General to seek injunctions against interference with the right to vote on racial grounds. The Civil Rights Act of 1960, 74 Stat. 86, permitted joinder of states as parties defendant, gave the Attorney General access to local voting records, and authorized courts to register voters in areas of systemic discrimination. The Civil Rights Act of 1964, 78 Stat. 241, expedited the hearing of voting cases before three-judge courts . . . . L. Tribe, American Constitutional Law 931, n. 5 (3d ed. 2000).
3. A later case cited in Morgan, James Everards Breweries v. Day, 265 U.S. 545, 558563 (1924), applied the more flexible standard of McCulloch v. Maryland, 4 Wheat. 316 (1819), to the Eighteenth Amendment, which, in §1, forbade the the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States . . . for beverage purposes and provided, in §2, that Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Congress had provided, in the Supplemental Prohibition Act of 1921, §2, 42 Stat. 222, that only spirituous and vinous liquor may be prescribed for medicinal purposes. That was challenged as unconstitutional because it went beyond the regulation of intoxicating liquors for beverage purposes, and hence beyond enforcement. In an opinion citing none of the Thirteenth, Fourteenth, and Fifteenth Amendment cases discussed in text, the Court held that the McCulloch v. Maryland test applied. Unlike what is at issue here, that case did not involve a power to control the States in respects not otherwise permitted by the Constitution. The only consequence of the Federal Governments going beyond enforcement narrowly defined was its arguable incursion upon powers left to the Stateswhich is essentially the same issue that McCulloch addressed.
4. Dicta in one of our earlier cases seemed to suggest that even nonprophylactic provisions could not be adopted under §5 except in response to a States constitutional violations: When the State has been guilty of no violation of [the Fourteenth Amendments] provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress. United States v. Harris, 106 U.S. 629, 639 (1883). I do not see the textual basis for this interpretation.