In reply to Mark:
I don't believe I was saying anything different--obviously under the
*majority's* application of "congruence and proportionality", the fact that
failure by states didn't justify allowing a cause of action agains tprivate
parties as a remedy for state discrimminaton is part of the reasoning. But
look at how the Court evaluated the evidence of state discrimination--it was
far less deferential, more in the *garrett* mode, than it is in *Hibbs*. If
the Court had found that providing a cause of action was necessary to
supplement state failures, more along the lines of earlier cases like SOuth
Carolina v. Katzenbach or Ore. v. Mitchell on literacy tests, , then it
would have had to acknowledge the strong evidence of state gender bias. (I
know, I know, Rehnuquist reads the voting cases differently but they can be
read broadly---no one found that each state had discriminated against people
via litercy tests, and even *Morgan* can be read more broadly with a
straight face) Indeed, Rehnquist's assertion that "congress's findings
indicate that the problem of discrimination against the victims of
gender-motivated crime does not exist in all States or even most States" is
just wrong, along the lines of saying only a "hadful" of examples of state
discrimination against the disabled existed in *Garrett.* further, there
is plenty of evidence to believe Viriginia discrimnated against Christy
Brzonkala, but under *McClesky*, you'd never be able to prove it. drat,
wrong again!
*That* is the kind of analysis of the record I was getting at.
Lynne
----- Original Message -----
From: "Mark Tushnet" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: 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?
>
