I think your description is accurate & I think there is no doctrinal tension; nor, as I posted on the fedcourts list, do I think there was anything particularly suprising about CJ Rehnquist being in the majority given his more recent views on gender discrimination. I do think, however, that the approach to congruence and proportionality adopted in Hibbs adopted a more deferential tone, though that may be a product of the underlying right having been judicially recognized.
Allan Ides ----- Original Message ----- From: Mark Tushnet <[EMAIL PROTECTED]> Date: Wednesday, May 28, 2003 10:57 am Subject: Re: FMLA abrogation upheld > I'm getting confused on the Morrison/Hibbs point, so here's a post > aimed at attempting to straighten out my own thinking. Any > corrections/guidance are welcome. > > 1. Morrison's commerce clause holding: lots of evidence before > Congress, etc., but all going to whether violence against women > has a substantial aggregate effect on commerce, and therefore > irrelevant because violence against women is not a commercial > activity subject to the cumulative effects test/principle. > > 2 (a). Morrison's fourteenth amendment holding: evidence of > failures in state law enforcement systems, arguably violating the > constitutional rights of victims of gender-based violence, but a > remedy aimed at the perpetrators of the violence isn't congruent > with the constitutional violations. > > 2 (b) Morrison's fourteenth amendment holding: Congress has the > power under section five to make it criminal -- and so to provide > a civil remedy -- for a private person to interfere with rights > protected by section one > , but gender-based violence doesn't do so. > > 3. Hibbs's fourteenth amendment holding: sufficient evidence of > constitutional violations by state agencies to justify a remedy > that is congruent with the violations (targeted at the violators, > that is, the states) and proportional to them (that is, not overly > broad, etc.) > > If this understanding of the cases is right, where's the doctrinal > tension?
