This article discusses the relevance of legislative motivation to the judicial decision whether to uphold or to strike down laws affecting certain "fundamental" constitutional rights. The author contends that courts do and should consider the motivation behind the passage of laws in constitutional cases. First the author addresses the meaning of legislative "motivation" and "purpose". Second, the author discusses what an "individious" legislative motivation consists of and how the Court should decide when such a motivation exists. Next the author compares an analysis of the legislative purpose against traditionally used balancing tests of good vs. bad effects. The author then examines a few specific situations and concludes with a brief comment on the theories of motivation of Professor Ely, Professor Brest, and Professor Eisenberg.
J. M. Clark,
Legislative Motivation and Fundamental Rights in Constitutional Law,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol15/iss5/3