Motives and Effects in the US Constitutional Law and Theory

26 Pages Posted: 5 May 2014

See all articles by Wojciech Sadurski

Wojciech Sadurski

The University of Sydney - Faculty of Law

Date Written: May 4, 2014

Abstract

US constitutional law is a useful resource for considering the theory that some illicit motives render a legislative action unconstitutional. What these motives are is of course context-dependent, and it will take a separate argument to identify the motives which may taint a law as unconstitutional if it restricts freedom of expression, freedom of association, equal protection, etc. All that I want to show in this paper is that motives, per se, may often contaminate the law with unconstitutionality, and this contamination is largely independent of the actual impact, or effects, of these laws, upon a social reality. But the relationship between motives and effects is complex: often effects are seen as a threshold, or a prerequisite of a subsequent inquiry into motives, which completes the argument about unconstitutionality. Another way of harmonization of motives and effects may be by seeing effects as being indicators of most likely motives: in this case, effects stand as a measure of a motive, the latter being the true cornerstone of unconstitutionality. Such an inference from the effect to the motive is based on general empirical knowledge of the world: we know that some effects are usually triggered by some types of motives. In actual judicial arguments, the line between these different patterns of harmonization may be blurred – but this does not upset an argument that, at least at times, judges implement (sans le nom) a theory that illicit motives (accompanied by troublesome effects) taint a regulation as unconstitutional.

The point of the argument here is not to claim the priority of motive-oriented scrutiny over one which focuses on effects; rather, it is to reclaim a theory, often unpopular in contemporary constitutional theory, that illicit reasons for legislation are an important criterion of its illegitimacy, hence, unconstitutionality.

Keywords: Constitutional law, constitutional theory, legislative motivations, discrimination, strict scrutiny

JEL Classification: K10, K30

Suggested Citation

Sadurski, Wojciech, Motives and Effects in the US Constitutional Law and Theory (May 4, 2014). Sydney Law School Research Paper No. 14/43, Available at SSRN: https://ssrn.com/abstract=2432761 or http://dx.doi.org/10.2139/ssrn.2432761

Wojciech Sadurski (Contact Author)

The University of Sydney - Faculty of Law ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
138
Abstract Views
1,056
Rank
376,949
PlumX Metrics