This commentary addresses the justiciability requirement that must be met by a person challenging the constitutionality of government action and the claim that the purpose of justification is to prove that the government's action is not caused by constitutionally illicit considerations. First the author discusses the justification process in racial equal protection and some problems with Simon's argument including Simon's claim that proof of racial prejudice is a necessary condition for judicial invalidation. Next the author discusses the justification process in the context of the First Amendment. The author concludes that although motivational analysis may explain the function of the justification process in certain areas of constitutional law, it is neither a complete explanation of what courts have been doing nor a desirable prescription of all that they should do.
Scott H. Bice,
Motivational Analysis as a Complete Explanation of the Justification Process,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol15/iss5/5