Calvin Massey is about to publish an important article on what place government purpose ought to occupy in constitutional analysis. The article is called "The Role of Governmental Purpose in Constitutional Judicial Review," and it will appear in Vol. 59 of the South Carolina Law Review. Here is the abstract:
The purpose of governmental action is sometimes highly relevant to judicial determination of its constitutional validity, and sometimes completely irrelevant. Why? Even when purpose is relevant, the method of ascertaining purpose is highly variable. Why? When should governmental purpose be relevant to assessment of the constitutional validity of its action? What method should courts use to determine purpose? This article grapples with these questions by first distinguishing between purpose and motive, a distinction that the Supreme Court frequently elides, then examining what the Court has done, and proposing what the Court should do. The Court's consideration of purpose is unguided by any discernible principle, although the stringency of the applicable level of review has some influence upon the relevance of purpose. The Court's method of determining purpose is equally unguided. Purpose is sometimes derived from statutory text, sometimes from the effects of the action, sometimes from hypothesis, and sometimes from inferences of motive, and these varying methods are largely untethered from the applicable level of review. Although purpose inquiry is necessary to tiered scrutiny the Court should focus primarily on the effects of government action. When the chosen means are ineffective to accomplish a forbidden purpose, courts should ignore purpose, except in cases of intangible stigmatic injury or when courts are incapable of assessing effectiveness. When the effects of government action are constitutionally suspicious but no forbidden purpose is evident, courts should liberally permit challengers to offer proof of an illegitimate purpose or motive in order to sift effects that are unintended byproducts of lawful action from those that are produced by an occult bad purpose or motive. Facial challenges should always involve scrutiny of purpose, because the effects are generally speculative, either because such challenges are brought before implementation of the measure or it so squelches protected activity that as-applied challenges are unlikely to occur. Within minimal scrutiny, when the effect of governmental action is divorced from the government's stated or conceivable purposes, the action should be treated as irrational. Within heightened scrutiny courts should consider purpose with greater care, examining the face of the statute or its application for evidence of a forbidden purpose. Evidence of legislative motive should be used quite sparingly, if at all, due to the extreme difficulty of identifying a singular motive for the action of a deliberative body. This proposal implies that a number of areas of constitutional doctrine should be reconsidered or abandoned. Aspects of free expression, equal protection, substantive due process, and the religion clauses are called into question. The author hopes to spark debate on these matters, rather than offer the final word.
Here is the SSRN link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1009223