pGordon Gregory Young (University of Maryland - School of Law) has posted a href=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1317819Justifying Motive Analysis in Judicial Review/a (William amp; Mary Bill of Rights, Vol. 17, No. 1, pp. 191-261, 2008) on SSRN.nbsp; Here is the abstract:/pblockquotepMotives concern us in ordinary life and in the law of torts and crimes, and that concern is justified by consequentialist ethics. Despite occasional judicial protestations, motive analysis pervades large parts of constitutional law. Illegitimate motives aimed at suspect classes, or quot;designed to strikequot; at any number of rights identified as fundamental, presumptively invalidate the official actions that they animate. The consequentialist arguments for the use of motive review in this class of cases are relatively simple. Such illegitimate official motives tend to cause bad distributions of tangible benefits and burdens, or cause direct cognitive or emotional harm to the targets or derision or denigration. Difficulties emerge, along with some potentially generative possibilities, in a set of cases which includes U.S. Department of Agriculture v. Moreno, Cleburne v. Cleburne Living Center, and argulably Romer v. Evans and Lawrence v. Texas. Those cases involve neither suspect classes nor fundamental rights, yet in each case, the Court invalidated political branch action on grounds of more general destructive motives. Perhaps it is this broader normative concern that undergirds motive law in general.
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Can motive analysis be justified in this set of cases on consequentialist grounds? Or is the only explanation deontological - that such actions are wrong in themselves, regardless of their consequences? Doubts about consequentialist justification are legitimate. In cases involving more ordinary interests, normally consigned to rational basis review, almost any set of consequences will be accepted by courts unless an illegitimate motive is found. Thus the deep concern seems to be with some inherently morally tainting property of illicit motives, not with the consequences of such motives. Despite these appearances, this Article argues that consequentialism is the moral theory best fitting these cases. Along the way, it explores other neglected issues connected with motive analysis, including whether judicial motive talk is inevitably about mental states, and the extent to which government actions can be prohibited based on the psychic harm caused by expression without unduly restricting the ability of governments to speak. /p/blockquotepThe paper assumes that deontological amp; consequentialist ethics provide the only perspicuous frameworks for analysis.nbsp; Young writes:/pblockquotepIt is difficult to see how the notion of virtue ethics might be translated to apply, in some
convincing way, to the actions of individual and collective government officials. Though the
effort might be interesting, and even rewarding, nothing suggests that virtue ethics is a good
fit with the cases dealing with the role of motive in constitutional law./p/blockquotepThere is, of course, a growing literature that does quot;applyquot; quot;virtue ethicsquot; quot;to the actions of individual and collective government officials.quot;nbsp; For an introduction to my own work in this vein see a href=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=369940Virtue Jurisprudence: A Virtue-Centered Theory of Judging/a and for a collection of essays, see the anthology a href=http://www.google.com/url?sa=tamp;source=webamp;ct=resamp;cd=1amp;url=http%3A%2F%2Fwww.amazon.com%2FVirtue-Jurisprudence-Colin-Farrelly%2Fdp%2F0230552897amp;ei=KLZPSZTvJ5TS8wTBhJiqDwamp;usg=AFQjCNF_LTH5LYynzcH9fbvn-po8fBVfWgamp;sig2=9H_K5mCnKjAoIJwW8wY0gQVirtue Jurisprudence/a.nbsp; I should think that virtue ethics (rather than deontology) best illuminates the evaluative significance of motive in decisionmaking by public officials./p
