Cite as: 531 U. S. 356 (2001)
Breyer, J., dissenting
v. Florida Bd. of Regents, 528 U. S. 62, 81 (2000) ("Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment." Rather, Congress can prohibit a "somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text"); Florida Prepaid Post-secondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639 (1999) (" 'Congress must have wide latitude' ") (quoting City of Boerne, supra, at 519-520); City of Boerne, supra, at 528 (reaffirming Morgan); 521 U. S., at 536 (Congress' "conclusions are entitled to much deference"). And even today, the Court purports to apply, not to depart from, these standards. Ante, at 365. But the Court's analysis and ultimate conclusion deprive its declarations of practical significance. The Court 'sounds the word of promise to the ear but breaks it to the hope.'
IV
The Court's harsh review of Congress' use of its § 5 power is reminiscent of the similar (now-discredited) limitation that it once imposed upon Congress' Commerce Clause power. Compare Carter v. Carter Coal Co., 298 U. S. 238 (1936), with United States v. Darby, 312 U. S. 100, 123 (1941) (rejecting Carter Coal's rationale). I could understand the legal basis for such review were we judging a statute that discriminated against those of a particular race or gender, see United States v. Virginia, 518 U. S. 515 (1996), or a statute that threatened a basic constitutionally protected liberty such as free speech, see Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); see also Post & Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 Yale L. J. 441, 477 (2000) (stating that the Court's recent review of § 5 legislation appears to approach strict scrutiny); 1 L. Tribe, American Constitutional Law § 5-16, p. 959 (3d ed. 2000) (same). The legislation before us, however, does not discriminate against anyone, nor does it pose any threat to basic liberty. And it is diffi-
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