Constitutional Law Article 130 Harv. L. Rev. 523

Constitutionally Forbidden Legislative Intent



In litigation under the Equal Protection, Free Exercise, Establishment, Free Speech, and dormant commerce clauses, among others, the Supreme Court sometimes inquires whether the legislature that enacted a challenged statute did so with a discriminatory or otherwise constitutionally forbidden intent. In a comprehensive reexamination of the nature and significance of forbidden legislative intentions, purposes, and motivations, this Article shows that the Court’s references invoke varied senses of legislative intent, some of which are subjective and others objective, some of which are coherent and others of which are incoherent. The Article also demonstrates that the Court has provided disparate indications of the significance that should attach to a finding of forbidden intent. These include automatic statutory invalidation, the application of strict judicial scrutiny, and further inquiry into whether the legislature, absent a forbidden motivation, would have enacted the same statute anyway.

After mapping confusions in current law, this Article argues that courts should never invalidate legislation solely because the legislature acted with forbidden intentions. Substantive tests of validity should ultimately determine constitutionality. Nevertheless, the Article defends a role for intent-based inquiries — pursuant to intelligibly specified rules for ascribing intentions to multimember bodies — in triggering elevated judicial scrutiny under some constitutional provisions

* Joseph Story Professor of Law, Harvard Law School. I am grateful to Deborah Hellman, David Pozen, and Mark Tushnet for extremely helpful comments on a prior draft, and to Sam Barr, Chris Hampson, Ephraim McDowell, and Nino Monea for invaluable research assistance.