Academic journal article Harvard Law Review

Constitutionally Forbidden Legislative Intent

Academic journal article Harvard Law Review

Constitutionally Forbidden Legislative Intent

Article excerpt

CONTENTS I. CONCEPTIONS OF FORBIDDEN OR DISCRIMINATORY INTENT IN CURRENT CONSTITUTIONAL DOCTRINE 534    A. Subjective Conceptions of Legislative Intent      1. Collective Intentions      2. Counting-Based Ascription Rules      3. Aggregation of Individual Intentions in the Absence of         Counting Rules    B. Objective Conceptions of Legislative Intent      1. Imputed Collective Intent to Make Sense of Specific         Statutory Language      2. Categorically Ascribed Objective Intent      3. An Expressive Conception of Legislative Intent Derived from         the Social Meaning of Legislation    C. Forbidden Legislative Intent as a Protean Concept II. THE SIGNIFICANCE OF FORBIDDEN LEGISLATIVE INTENT UNDER CURRENT     DOCTRINE     A. Necessary and Automatic Invalidation     B. Invalidation Whenever Forbidden Intent Is the But-for Cause of        a Statute's Enactment     C. Forbidden Intent as a Trigger for Elevated Judicial Scrutiny     D. Variety or Inconsistency III. REORIENTING CONSTITUTIONAL DOCTRINE TOWARD THE ENFORCEMENT OF      SUBSTANTIVE CONSTITUTIONAL NORMS    A. Substantive and Deliberative Norms and Their Possible Roles in       Judicial Inquiries into Constitutional Validity     1. The Importance of Substantive Norms     2. The Possible Roles of Substantive and Deliberative Norms        and Tests    B. Subjective Intent and Substantive Constitutional Invalidity     1. Distinguishing the Permissibility of Actions from the        Permissibility of Motivations     2. Appraising the Costs and Benefits of Invalidating Statutes        Based on Legislators' Forbidden Subjective Motivations    C. Refashioning Objective Tests of Forbidden Legislative Intent       into Substantive Constitutional Norms       1. Categorically Ascribed Objective Intent       2. Intent Inferred from Expressive Content IV. A CONTINUED ROLE FOR SUBJECTIVE LEGISLATIVE INTENT AS A TRIGGER     FOR ELEVATED JUDICIAL SCRUTINY     A. Subjective Intent as a Basis for Enhanced Scrutiny of        Legislation       1. The Grounds for Elevated Scrutiny       2. Identifying Forbidden Subjective Legislative Intent     B. A Proposed Hybrid Trigger for Elevated Scrutiny: Forbidden        Motivation as a Factor that Increases Legislation's Harmful        Effects  V. CONCLUSION 

Inquiries into legislative intentions, purposes, and motivations feature prominently in American constitutional law. (1) In order to identify constitutional violations under the Equal Protection Clause, courts sometimes ask whether the legislature acted with a racially discriminatory intent, (2) whether it manifested animus toward an identifiable group, (3) or whether the legislature had the predominant purpose of creating a voting district in which members of a racial minority group constitute a majority. (4) Under the dormant commerce clause, tax or regulatory statutes that reflect a discriminatory or protectionist legislative purpose incur strict judicial scrutiny. (5) The Supreme Court has long held that statutes violate the Establishment Clause if they are motivated entirely by the forbidden purpose of promoting religion. (6) The Free Exercise Clause mandates strict scrutiny of laws "the object" of which "is to infringe upon or restrict practices because of their religious motivation." (7) Under the "undue burden" test of Planned Parenthood of Southeastern Pennsylvania v. Casey, (8) regulations of abortion violate the Due Process Clause if their "purpose ... is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." (9) The Court has pointed to forbidden purposes as a ground for invalidating interferences with the right to travel. (10) Under constitutional provisions that restrict permissible state punishments--including the prohibitions against ex post facto laws, (11) bills of attainder, (12) and double jeopardy (13)--judicial inquiries frequently begin with the question whether the legislature enacted a challenged provision with a punitive intent. …

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