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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