This article attempts to articulate and to explain the operation of a motivation theory of constitutional law in which the burdens of justification reflect the differing degrees to which rules and effects are themselves probative of illicit motivation, especially in cases involving racially based equal protection claims. The article offers a theory under which a finding that governmental action was causally affected by racial prejudice can be understood as both a sufficient and a necessary condition for holding the action unconstitutional. The author begins by explaining the normative theory that makes or ought to make the question of racially prejudiced motivation outcome determinative. Then the author explains the evidentiary system within which the question of racially prejudiced motivation is or ought to be adjudicated.
Larry G. Simon,
Racially Prejudiced Governmental Actions: A Motivation Theory of the Constitutional Ban Against Racial Discrimination,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol15/iss5/4