This commentary focuses on two problems. First, it focuses on the relevance of motivation to constitutional adjudication. The author does not add anything to the theory of Professor Brest, but does clarify why and to which sorts of constitutional claim motivation is relevant. Then the commentary focuses on the significance of disproportionate racial impact. The author argues that any law having a disproportionate racial impact ought to be subject to an unusually heavy burden of justification, although not automatically struck down. The author disagrees with Professor Simon because the author believes a law with a disproportionate racial impact should be subject to a heavy burden even if it is incontestable that the law was not motivated by any racial prejudice.
A Brief Comment on Motivation and Impact,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol15/iss5/11