Lori A. Ringhand (University of Georgia School of Law) has posted Reconsidering Congruence and Proportionality After Louisiana v. Callais on SSRN. Here is the abstract:
In Louisiana v. Callais, the Supreme Court severely cabined the reach of section 2 of the Voting Rights Act, in part on the basis that as previously interpreted it was likely to exceed congressional power under the enforcement provision of the Fifteenth Amendment. In so doing, it reignited a debate about the test the Court should use to evaluate the scope of that power. The “congruence and proportionality” test, first embraced by the Court in a Fourteenth Amendment case, has been broadly criticized, including by Justice Antonin Scalia, one of the Court’s most prominent originalists. Yet the originalist justices in the Callais majority nonetheless extended its reach by transplanting it, with no analyses, into the Court’s Fifteenth Amendment jurisprudence. This was a mistake. As this paper shows, the test is inconsistent with modern originalist understandings of constitutional interpretation, construction, and liquidation. The meaning of the enforcement provisions was fully liquidated by more than 100 years of settled practice. This practice began shortly after ratification of the Reconstruction Amendments and continued until City of Boerne v. Flores, the 1997 case that introduced the congruence and proportionality test. Moreover, even if the meaning of the enforcement provisions had not been fully liquidated (or was “reliquidated” by Boerne), the Boerne test itself is best understood as a constitutional construction adopted to constrain congressional power over the capacious rights protected by the Fourteenth Amendment, rather than an interpretation of the meaning of the enforcement provisions themselves. As such, the Callais Court doubly erred in expanding the reach of the test into the very different context presented by the Fifteenth Amendment.
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