Unconstitutionally Illegitimate Discrimination

Abstract

When government officials express intent to disparage or discriminate against a group, the constitutional consequences can be severe, but they are rarely imposed. In this Article, I argue that discriminatory motive is and should be enough to declare government acts unconstitutional. Second, I argue that the main reason why is the harm to government legitimacy. While some argue that the concern with intentional discrimination is its harm, such as its stigmatizing effect, I argue that the focus should not be on harm, but on how it delegitimizes government. I make the descriptive claim that Constitutional doctrine, in its broad outlines, reflects a legitimacy-based view. In the Equal Protection context, courts have set out how discriminatory goals are not legitimate state interests. In the Executive action context, courts state that absent a legitimate and bona fide justification, the Executive may not have power delegated from Congress to act. What courts have not done is specified what happens when the hammer falls: how intent disables government policymaking and for how long. The legitimacy-focused approach can neutralize government decisions, even when the government tries to re-do its policy and claim new reasons. Third, I argue that a legitimacy-focused approach towards constitutional intent doctrine that I advance in this Article is normatively preferable. The approach does incentivize insincere reasons for government actions. However, I argue that advantages outweigh those costs. There are real benefits to even insincere expressions of non-discrimination. Conversely, when the government makes discriminatory statements, this is very strong evidence of discriminatory motive. During a time of nationwide litigation of intentional discrimination claims in areas including immigration rights, voting rights, and religious non-establishment, it has never been more important to set out the doctrine, the costs, and the consequences of unconstitutionally illegitimate intent.