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21 Cardozo L. Rev. 469 (1999-2000)
The Reaffirmation of Proportionality Analysis under Section 5 of the Fourteenth Amendment

handle is hein.journals/cdozo21 and id is 483 raw text is: THE REAFFIRMATION OF PROPORTIONALITY ANALYSIS UNDER SECTION 5 OF THE FOURTEENTH AMENDMENTt Marci A. Hamilton* David Schoenbrod** In recent cases, the United States Supreme Court has made clear that Congress's power under Section 5 of the Fourteenth Amendment extends only to provide remedies proportional to violations of the rights incorporated in the Fourteenth Amendment, and not to enlarge those rights.1 When this principle was explicitly reinforced in the past few years, some scholars expressed surprise at this proportionality requirement, viewing it as a departure from precedent.' However, the cases-Florida Prepaid Post-Secondary Education Expense Board v. College Savings Bank3 and City of Boerne v. Flores4-provide a clear ' Copyright 1999 Marci A. Hamilton and David Schoenbrod. Professor Hamilton was lead counsel for the City of Boerne, Texas, in City of Boerne v. Flores, 521 U.S. 507 (1997). The authors thank David I. Levine, Henry P. Monaghan, Peter H. Schuck, and Harry H. Wellington for helpful comments on earlier drafts of this Article and Michael Wickersham, Peter Yu, Doug Landon, Zaharah Markoe, Arti Tandon, Mark Atlee, and Sena Kim-Reuter for their research assistance. * Professor of Law, Benjamin N. Cardozo School of Law. ** Professor of Law, New York Law School. 1 See Florida Prepaid Post-Secondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2206 (1999); City of Boerne v. Flores, 521 U.S. 507, 519 (1997); see also Alden v. Maine, 119 S. Ct. 2240, 2267 (1999). 2 The first case in the modern era to emphasize the proportionality requirement was Boerne, which invalidated the Religious Freedom Restoration Act of 1993 (RFRA). Those who expressed surprise included prominent defenders of the RFRA. See Protecting Religious Freedom After Boerne v. Flores: Hearings Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. (1997) (testimony of Professor Douglas Laycock) <http://www.house.gov/judiciary>; id. (testimony of Marc D. Stern, American Jewish Congress) <http://www.house.gov/judiciary> (transcript on file with author); see also Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153 (1997). Others have expressed surprise as well. See, e.g., Robert F. Drinan S.J., Essay, Reflections on the Demise of the Religious Freedom Restoration Act, 86 GEO. L.J. 101 (1997); Bernard Schwartz, A Presidential Strikeout, Federalism, RFRA, Standing, and a Stealth Court, 33 TULSA L.J. 77 (1997); Mary Ann Glendon, Religious Freedom and Common Sense, N.Y. TIMES, June 30, 1997, at All. 3 119 S. Ct. 2199 (1999).

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