Purpose scrutiny in constitutional analysis

In its constitutional law jurisprudence over the past twenty-five years, the Supreme Court has generally declined to pass judgment on the legitimacy of legislative ends. Instead, the Court has focused on the rationality and fitness of the means legislatures have chosen to attain those ends. The Court's three-tiered approach to equal protection analysis, the outlines of which it has also adapted to free speech cases, exemplifies this eschewing of purpose inquiry. In the author's view, however, a number of recent cases in these two contexts and in other areas of constitutional law show an increased willingness by the Court to inquire into and pass upon legislative purposes. Because this new tendency has been haphazard and largely unannounced the Court has not tied its review of purpose to any firm set of principles. In the absence of such principles, the author believes that the new trend presents counter-majoritarian dangers, in addition to being unpredictable. He therefore argues that the Court should explicitly lay out the classes of cases that will receive particular levels of purpose review, and tie that review to the text and history of the constitutional provisions at issue in each case. Finally, the author presents preliminary suggestions on how such a framework might work.