Fried, Charles, Constitutional Commentary
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.
I. 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. …