University of Michigan Law School Scholarship Repository
Abstract
With the narrowing of Congress\u27 Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five\u27s legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five\u27s permissible means by holding that Section Five measures must be congruent and proportional to a legitimate end thus defined. This article argues that the means-ends test for Section Five legislation should be the same as the conventional rational relationship test established by McCulloch v. Maryland, not the congruence and proportionality test that the Court has recently adopted. The textual language and the original meaning of the Fourteenth Amendment support this argument, while neither separation of powers nor federalism principles persuasively justify the Court\u27s contrary position. Finally, this article speculates about the significance of Section Five\u27s tightened means-ends scrutiny for other sources of congressional power
