Sunday, January 4, 2009
Professor Greg Young (U. Md.) recently posted Justifying Motive Analysis in Judicial Review on ssrn; it is also forthcoming in the William & Mary Bill of Rights Journal. The article is a thoughtful exploration of motive analysis in constitutional law and a good argument that motive analysis even in a set of rational basis cases (including Moreno, Romer, Cleburne, and Lawrence) can be justified on consequentialist, not deontological, grounds. In the spirit of Young, I justify reading this excellent article--and I highly recommend it--for its consequences both mediate and immediate: It's not only a useful addition to the literature that may impact your own thoughts and work; it is also a delightful and satisfying read in itself.
Young sets out his task thus:
My central concern, however, is with how motive analysis might be justified on an attractive moral philosophical theory, one that fits reasonably well with the case law. I am especially concerned with whether a consequentialist justification is a good fit with the case law. Making consequentialism fit the case law is especially difficult, though I think possible, in certain rational basis cases such as U.S. Department of Agriculture v. Moreno, Romer v. Evans, and City of Cleburne v. Cleburne Living Center, Inc. . . .
My burden is to demonstrate why the presence of an actor's illegitimate motive (mental state) is likely to correlate with an absence of other objective reasons that are legitimate and sufficient under the circumstances to justify his action. . . .
And here's the punchline:
[O]ne might say that the Constitution requires public bodies and officers to seriously weigh even ordinary individual liberty interests and interest in equality against public regulatory interests. . . . But it is intelligible to fear that, in the great mass of actions based on illegitimate motives, individual interests are not considered seriously enough or at all. And that is a consequentialist concern, becuase one intuitively predicts that, in the long run, the mass of illegitimately motivated actions will form a world that is significantly concretely different from a world in which individual interests are taken seriously.
. . .
But let us assume that one wishes to adhere strictly to the surface appearance of constitutional race law that no states of the world are so disfavored. By this I mean that no disparate impacts are disfavored, no matter how large. Even so, the problems of hurtful expression provide an alternative plausible consequentialist explanation . . . .
Along the way, Young examines a number of important but underexplored issues with motive analysis, including whether motive analysis is about mental states, whether motives must be conscious, and whether government actions might be prohibited based on psychic harm caused by expression without restricting government speech (or: "Why Don't We Put Legislatures in Jail?").
I have to admit that I enjoy the article in large part because of its attention to the Moreno-line of cases--a line that, in my judgment, offers countless opportunities for analysis. And Young's piece is an important addition: By showing how the motive analysis in these cases can be justified on consequentialist grounds, Young also underscores the importance of their underlying principle--that if "'equal protection of the laws' means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Moreno, at 534-35.
But more generally, as I said above--and I can't say it any better here--this is a satisfying read. I highly recommend it.