742
Scalia, J., dissenting
by 49 other States. We explained as much long ago in the Civil Rights Cases, 109 U. S. 3, 14 (1883), which invalidated a portion of the Civil Rights Act of 1875, purportedly based on § 5, in part for the following reason:
"It applies equally to cases arising in states which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws as to those which arise in states that may have violated the prohibition of the amendment."
Congress has sometimes displayed awareness of this self-evident limitation. That is presumably why the most sweeping provisions of the Voting Rights Act of 1965—which we upheld in City of Rome v. United States, 446 U. S. 156 (1980), as a valid exercise of congressional power under § 2 of the Fifteenth Amendment*—were restricted to States "with a demonstrable history of intentional racial discrimination in voting," id., at 177.
Today's opinion for the Court does not even attempt to demonstrate that each one of the 50 States covered by 29 U. S. C. § 2612(a)(1)(C) was in violation of the Fourteenth Amendment. It treats "the States" as some sort of collective entity which is guilty or innocent as a body. "[T]he States' record of unconstitutional participation in, and fostering of, gender-based discrimination," it concludes, "is weighty enough to justify the enactment of prophylactic § 5 legislation." Ante, at 735. This will not do. Prophylaxis in the sense of extending the remedy beyond the violation is one thing; prophylaxis in the sense of extending the remedy beyond the violator is something else. See City of Rome, supra, at 177 ("Congress could rationally have concluded
*Section 2 of the Fifteenth Amendment is practically identical to § 5 of the Fourteenth Amendment. Compare Amdt. 14, § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"), with Amdt. 15, § 2 ("The Congress shall have power to enforce this article by appropriate legislation").
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