Massey on Prophylaxis in Fourteenth Amendment Enforcement

Calvin Massey has posted an article exploring the type and degree of prophylaxis that Congress should be allowed in enforcing the 14th Amendment. The article is called "Two Zones of Prophylaxis: The Scope of the Fourteenth Amendment Enforcement Power," and will be published in the George Washington Law Review. Here is the abstract:

The Supreme Court has limited congressional power to enforce the Fourteenth Amendment to remedial actions, but has acknowledged that prevention of constitutional injuries is remedial. To control the boundaries of this remedial power, the Court limits Congress to regulations that are congruent with the identified constitutional wrong it seeks to prevent and proportional to the extent of that injury. The meaning of congruence and proportionality has been fleshed out almost entirely in the context of congressional attempts to abrogate state sovereign immunity. In that context, those terms require evidence that states have been engaged in a pattern of unconstitutional behavior and that the prohibited state behavior is closely connected to the constitutional wrong. In practice, the Court requires less evidence and permits a looser fit between the remedy and the wrong when the prohibited state behavior is presumed to be unconstitutional. The Court has intimated that Congress may have even greater freedom to prevent constitutional injury when abrogation of state sovereign immunity is not at issue. If this is so, the meaning of congruence and proportionality must differ from the abrogation context. The central concern of abrogation of state sovereign immunity is protection of the sovereignty of the states and autonomous state governance by preservation of the public fisc. Those concerns become of lesser importance when abrogation is not at issue, and federalism issues become of much greater significance. The principal federalism issue is interpreting the enforcement power in such a way that Congress is unable to use it as a general police power. Courts should defer to congressional judgments about the scope of the enforcement power when, in a non-abrogation context, a significant portion of the state conduct it regulates materially interferes with an inchoate constitutional right. For this purpose, an inchoate constitutional right is either (1) a claimed right that has yet to be recognized by the Supreme Court as deserving of any form of heightened judicial scrutiny, but which has been widely and repeatedly treated as a plausible constitutional right by multiple sources within our constitutional culture, including decisions of state and lower federal courts, repeated dicta in opinions of the Supreme Court, legislative debate, learned commentary, and popular opinion, or (2) a legislative application of an existing judicially recognized right that has not yet been determined by the Court to be within or without the existing right, but which Congress has found, by adequate evidence, to be within the existing judicially recognized right. Such a standard, while inherently loose, would allow Congress wide latitude to prevent constitutional injuries, even when the conduct Congress regulates is presumptively in compliance with the Fourteenth Amendment, but would not permit Congress to assume a general police power. This standard is consistent with the underlying rationale of City of Boerne v. Flores, which recognized the prophylactic aspect of the enforcement power, even as it repudiated the extremely deferential McCulloch-derived test of Katzenbach v. Morgan, which permitted Congress independently to define the content of the constitutional rights it chooses to enforce. Congressional ability to identify and enforce constitutional rights before their recognition as such by the judiciary would be bounded by judicial, legislative, academic, and popular voices in the constitutional culture, and would be subject to judicial control to ensure that nascent constitutional rights recognized by Congress actually have a strong impetus for recognition within our constitutional culture.

Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009741