The purpose of purpose analysis.

AuthorRubenfeld, Jed
PositionResponse to article by Larry Alexander in this issue, p. 2679

To get right to the point:(1)

(1) Professor Alexander first wonders how I can urge a smoking-out conception of strict scrutiny while still supporting affirmative action programs that would fail strict scrutiny. "If [such programs] failed strict scrutiny .... does that not demonstrate that they were unconstitutionally motivated?"(2) The answer is no--no more than a speed limit's inability to survive strict scrutiny proves that it was unconstitutionally motivated. Nearly all laws would fail strict scrutiny. That is why strict scrutiny must be an exceptional test, triggered only when there are powerful grounds for suspecting an impermissible purpose.(3)

(2) Professor Alexander's second question is, "What legislative purposes are unconstitutional?"(4) He seems to want a complete list; if so, I cannot satisfy his request. My aim was to show that equal protection jurisprudence must confront this difficult question. I do say, on the basis of the Fourteenth Amendment's paradigm cases, that state action is unconstitutional if it purposefully imposes an inferior caste status on any group. Professor Alexander suggests that this principle would be confounded by a statute banning blacks from "high social positions" if the lawmakers had been sincere utilitarians, motivated solely by concern over white pain at black success.(5) This objection mistakenly supposes that an illegitimate purpose is somehow erased or washed clean by the presence of a putatively legitimate further motive (or "ultimate" purpose). A law deliberately barring blacks from "high positions" is quintessentially a law purposefully inflicting an inferior caste status on blacks. It is hence unconstitutional--period. The lawmakers' motives are irrelevant.(6)

(3) Professor Alexander "save[s]" his "most important" question for last: "Why should the constitutionality of a law... ever turn on the purposes for which it is enacted?"(7) This is indeed an interesting question, but happily not of an intricacy proportioned to its interest. The answer is: because the Fourteenth Amendment at its core concerns invidious discrimination, and such discrimination at its core involves purpose. Would we find invidious discrimination if a particular ethnic group had not a single member on any professional basketball team? I think not--unless this group were shown to have been purposefully excluded.(8)

Finally, Professor Alexander hypothesizes a situation in which "both sides in a legislature--those for law A...

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