Rules, rights, options, and time

Legal Theory

Volumn 6, Issue 4, 2000, Pages 391-404

  Alexander, Larry ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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[No Author keywords available]

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EID: 79955112409     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200064028     Document Type: Article

References (23)

1. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 U. MICH. L. REV. 1 (1998).
2. See Texas v. Johnson, 491 U.S. 397 (1989).
3. See Adler, Texas v. Johnson note 1.
4. See Police Department of the City of Chicago v. Mosley, 408 U.S. 92 (1972) (unequal treatment of speakers based on content violates freedom of speech); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993) (unequal treatment of religious group because of religious rituals violates right to free exercise of religion). See generally Larry Alexander, Constitutional Theory and Constitutionally Optional Benefits and Burdens, 11 CONST. COMMENT. 287, 290-92 (1994).
5. See Marsh v. Alabama, 326 U.S. 501 (1946).
6. See Rochin v. California, 342 U.S. 165, 172-73 (1952).
7. See U.S. CONST. art. VI, § 3.
8. See Larry Alexander & Paul Horton, WHOM DOES THE CONSTITUTION COMMAND? 13-14, 63-64 (1988).
9. See Alexander, WHOM DOES THE CONSTITUTION COMMAND? note 5, at 290-92.
10. See Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview, 148 U. PA. L. REV. 1363 (2000).
11. Cf. Everson v. Board of Education, 330 U.S. 1 (1947) (upholding as constitutional the provision of public transportation to parochial school students).
12. Because invalidation cannot guarantee a change in the legislature's attitudes, invalidating socially beneficial laws because of the legislature's “meaning” seems absolutely perverse. See Larry Alexander, Affirmative Action and Legislative Purpose, 107 YALE L.J. 2679, 2683 (1998).
13. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 687-94 (1984) (O'Connor, J., concurring).
14. See Alexander, note 13 Lynch v. Donnelly. note 5, at 300-07.
15. Lochner v. New York, 198 U.S. 45, 75 (1905). Justice Holmes went on to say, “[A] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views….” Id. at 75-76.
16. John Hart Ely, DEMOCRACY AND DISTRUST 56-58 (1980).
17. A similar example is used in Alexander, DEMOCRACY AND DISTRUST note 5, at 296-99, and in Larry A. Alexander, Modern Equal Protection Theories: A Metatheoretical Taxonomy and Critique, 42 OHIO ST. L.J. 3, 24-39 (1981).
18. See Dandridge v. Williams, 397 U.S. 471 (1970) (rejecting the notion that welfare, though constitutionally permissible, is a “fundamental interest” under the Constitution).
19. See Lawrence Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
20. And consider the many possible constitutionally legitimate reasons for which each Chinese applicant to run a laundry could have been denied a license in Yick Wo v. Hopkins, 118 U.S. 356 (1886). How do we know that the members of the San Francisco Board of Supervisors were not switching among the various possible legitimate rules for awarding licenses? Because whatever legitimate reasons might have been applicable had they merely been changing their minds about what reasons to choose, the circumstantial evidence was overwhelming that they were not changing their minds but were consistently following a single illegitimate purpose or metarule, namely, to exclude Chinese. See Alexander, Id. amends. V and XIV note 5, at 302-04.
21. This analysis also shows the futility of recent attempts to get around such antidiscrimination laws as California's Proposition 209, which prohibits, inter alia, racial discrimination in admissions to public universities. CAL. CONST. art. 1, § 31. Administrators who select facially nonracial admissions criteria “in order to promote racial diversity” are not avoiding the law but are violating it. They are choosing close proxies for race for racial reasons, and we must assume that if the reasons remain constant over time, the proxies will change if necessary. See Alexander & Cole, U.S. 598 note 25. The real rule is “admit so as to promote racial diversity,” which is forbidden.
22. Because legislative purposes can render otherwise constitutionally optional rules unconstitutional, improperly motivated legislative inaction and repeals of rules are as unconstitutional as improperly motivated enactments. The status quo is no more constitutionally privileged than change, given that the status quo may itself be the product of improperly motivated failure to act. And that means that the courts must impose a remedy whenever they find a constitutionally improper rule that renders the entire set of optional rules unconstitutional. However, given that there are perhaps many constitutionally optional alternative sets of rules, which such set should they impose? They cannot evade this problem, because the legislature may not act. And if the legislature does not act, the corpus juris must be judicially altered. But which of the alternative sets of rules should be chosen? (Notice how this problem of remedy is merely the flip side of the problem of standing mentioned in note 25 This analysis also shows the futility of recent attempts to get around such antidiscrimination laws as California's Proposition 209, which prohibits, inter alia, racial discrimination in admissions to public universities.) See also Alexander, This analysis also shows the futility of recent attempts to get around such antidiscrimination laws as California's Proposition 209, which prohibits, inter alia, racial discrimination in admissions to public universities. note 5, at 307-09.
23. Richard Rodgers & Oscar Hammerstein, THE KING AND I.