Evan Tsen Lee has posted this draft on SSRN. Here is the abstract:
The Supreme Court’s test for the constitutionality of state action and its test for the constitutionality of congressional legislation enforcing the Fourteenth Amendment are out of synch with one another. When a plaintiff challenges state action under the Fourteenth Amendment, the degree of scrutiny varies with the type of claim. Racial classifications, for example, are examined under “strict” scrutiny. Most classifications, such as disability, age, or socioeconomic status, are examined on a “rational basis.” When Congress acts pursuant to its Section 5 powers under the Fourteenth Amendment to protect rights, however, the Court has no corresponding spectrum of degrees of scrutiny. In this paper I argue that the Court should adopt the “mirror image” spectrum of scrutiny for congressional enactments pursuant to its Section 5 powers. For example, if Congress seeks to protect people from age discrimination or discrimination based on disability by permitting individuals to sue states without their consent in federal court, the plaintiff should have to show that he or she actually suffered a constitutional violation in the case at bar. If Congress seeks to protect people from race discrimination, the plaintiff should have to show only that there is a rational, “means-end” relationship between the congressional remedy and the targeted discrimination. Applying this test to the Fifteenth Amendment, which prohibits race discrimination in voting, the courts should apply rational, “means-end” scrutiny to statutes such as the Voting Rights Act, including the preclearance condition that is likely to come before the Supreme Court in the near future.