Types.

• Author: Fried, Charles
• Position: The importance of certain classification systems to constitutional law reasoning

The doctrines elaborating the many provisions of the Constitution and its amendments show certain similarities. For instance, government action must submit to three levels of scrutiny: strict, intermediate, and rational basis; its goals are categorized as compelling, important, or merely legitimate; and the connection between these goals and the means of their attainment may be more or less tight -- "narrowly tailored" is a term frequently used. These elements are combined and recombined, modified, and elaborated in doctrines about subjects as different as the separation of powers, the impingement of local regulation on the national economy, the treatment of racial minorities, freedom of expression, and the taking of property for public use. The tripartite terminology of scrutiny is only one of the most obviously recurring features in our doctrinal formulations. In this article I consider another recurring feature of constitutional doctrine: that designated by the dichotomy between an effects test and an intents test. I discuss why there is such a dichotomy, what its terms mean, and the difficulties in giving it analytic and operational force, and suggest that a third term, what I call an acts test, should be added to it. Having adverted to the levels of scrutiny throughout my account and related it to them, I then briefly suggest how this trichotomy relates to some other recurring features of constitutional doctrine. the distinction between constitutional doctrines that state general aspirations, those that set up institutions and those that limit -- either by prohibition or positive requirements -- the exercises of power by the institutions and persons designated by the constitution to fulfill certain roles; unconstitutional condition; and the role of analogy in the statements and development of doctrine. Although at the outset it may seem that I am offering no more than a scheme of classification, by the end of this essay I hope it will be clear that there is more to it than that. The brief discussion of analogy, unconstitutional conditions, and aspirational, institutional, and limiting provisions is intended to indicate the kind of influence the trichotomy I elaborate exerts on the substance of constitutional doctrine. Only at the conclusion do I make this point explicit. The dichotomy (which becomes a trichotomy in my analysis) applies most naturally to limiting provisions, and I shall show why that should be. At this point I state only that limiting provisions seem to be at the heart of lawyers', and perhaps even the public's, conception of what constitutional law is really about, and move directly into mapping the dichotomy/trichotomy onto this type of constitutional provision.

1. INTENTS, EFFECTS, ACTS

   Provisions limiting official exercises of authority are positive or negative, that is, they require either that one do, aim at, or achieve what is mandated, or avoid doing, aiming at, or achieving the thing forbidden. The great divide in this domain of constitutional limits, whether positive or negative, is said to be between provisions that doctrine elaborates as speaking to forbidden or required purposes or goals of official action (intents tests) and forbidden or required results of those actions (effects tests). So, for instance, it is said that the Fourteenth Amendment forbids only those governmental actions that are intended to deprive persons of equal protection of the laws on some forbidden basis.(1) By contrast, from the 1963 decision in Sherbert v. Verner(2) until Oregon v. Smith(3) in 1990, the Free Exercise clause of the First Amendment was generally interpreted to forbid governmental action that had the effect of making religious practice more burdensome for the individual. But as we shall see there is something unsatisfactory about both of these analytical categories, at least if they are taken to exhaust the field. On the one hand, a focus on intent produces considerable complications in divining and assigning purposes to corporate entities. On the other hand, a focus on effects threatens to introduce a virtually unbounded judicial inquiry that is unconcerned with notions of moral agency.

   1. Effects

      Effects tests may seem to have a certain natural primacy: the law is a practical instrument, and effects designate the states of the world with which the law is concerned. But this is a mistake. Giving effects primacy commits constitutional law to a disputed vision of the state's function and of its proper form of intervention in human affairs. In many circumstances and for many reasons how an effect is produced may be of such significance that it overcomes any argument stated in terms of the effect alone. This is true in our personal morality and it is true for governments as well. There is another reason of a more practical order why the law generally, and constitutional doctrine in particular, often avoids effects tests: laws and doctrines stated in terms of effects risk asking too much, and so introduce an indeterminacy that invites a kind of balancing that itself has serious disadvantages.

      Balancing is entailed by effects tests because as a logical matter most courses of action have some tendency to contribute to a forbidden effect -- or to undermine the pursuit of a required effect. The case in which the Supreme Court first emphasized this inconvenience, Jefferson v. Hackney,(4) illustrates the problem. The state chose to pay more generous welfare benefits to blind and other physically disabled persons than to families in need of financial assistance because of poverty (AFDC), a category which contained a far higher proportion of African-Americans. This choice thus had the effect of disadvantaging an identifiable racial group. But the same might be said about a large range of social programs, particularly when such programs are viewed together. Similarly, if the reasoning of Sherbert v. Verner,(5) subjecting to strict scrutiny (and thus imposing a very heavy burden of justification) a particular government program that had the effect of making the exercise of some individual's religion more difficult, were extended and generalized, any government program -- whether an income tax (say, on the salary of a minister), a sales tax, or compulsory military service -- that made religious practice even slightly more burdensome would fall under the Constitution's ban. So, even when the limit is important enough to attract heightened scrutiny, whether strict or intermediate (rational basis scrutiny assumes balancing and allows almost any outcome to stand(6)), an effects test must be cabined or qualified somehow: either by some categorical rule that puts certain effects out of consideration or makes others determinative, or by a balancing test that allows the forbidden effect to be outweighed by the good that the questioned measure accomplishes. For this reason, effects tests intersect importantly with doctrines assigning levels of scrutiny to be applied to questioned actions. If a norm is stated in terms of a forbidden effect and that effect may only be justified by a compelling governmental interest, then such a norm will harshly limit governmental behavior in surprising and indeterminate ways. As I shall argue, that is why effects tests are more likely encountered in conjunction with lower levels of scrutiny, where the balancing is more permissive, strict scrutiny is more usually associated with intents tests.

      The balancing approach entails the inconvenience that the judges doing the balancing must assume a large and amorphous power to scan and evaluate all the decisions of government.(7) Unless the balancing is a sham and almost any plausible invocation of a government interest is found sufficient, a court that balances assumes, in effect, the quintessential exercise of public judgment. And so doctrines elaborating these limits on government generally seek more categorical boundaries for such provisions. The most eligible has seemed to be to move from effects to purpose as the focus of doctrine, and this is what the Supreme Court did in Jefferson(8) and Washington v. Davis.(9) In this way, though government produces a variety of effects, only those that are a part of its purpose in acting are relevant to the question whether a limit has been transgressed. This distinction corresponds to the distinction in tort law between harms negligently and intentionally produced. Negligence requires a judgment that an effect not only was brought about, but that it was brought about unreasonably -- that is, that the burden of avoidance was not too great relative to the harm to be avoided. And this is a conclusion that requires a judgment not only on the badness of the harm to be avoided, but implicitly on the value of all the ends that intersect with that harm and the pursuit of which may to a greater or lesser degree increase the risk of the harm coming about.(10) An intents test, such as the designation of wrongful purpose in serious crimes, requires no such global judgment, only the discrete judgment that of all ends an actor might pursue, this is one (e.g., to assault another) that is ineligible and disallowed. Doctrinal elaboration then takes the form of specified exceptions to such rules: for instance, self-defense or punishment as justifying what would otherwise be an assault. So also in constitutional law otherwise prohibited purposes may be pursued in specified circumstances.(11)

      Positive limits -- i.e. requirements -- have a different logic. It makes sense to direct that government may not pursue a certain end, or that a certain purpose may not be invoked to justify bad consequences, but to require either the pursuit of a certain end or the production a certain result, without explaining how large an effort must be made or at what sacrifice of competing goals, is always unsatisfactory.

      Despite the general tendency of doctrines, positive and negative, to make excessive claims when...