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The Purpose of Purpose Analysis
Rubenfeld, Jed
Rubenfeld, Jed
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Abstract
To get right to the point: (1) Professor Alexander first wonders how I can urge a smoking-out conception of strict scrutiny while still supporting affirmative action programs that would fail strict scrutiny. "If [such programs] failed strict scrutiny, . . . does that not demonstrate that they were unconstitutionally motivated?" The answer is no—no more than a speed limit's inability to survive strict scrutiny proves that it was unconstitutionally motivated. Nearly all laws would fail strict scrutiny. That is why strict scrutiny must be an exceptional test, triggered only when there are powerful grounds for suspecting an impermissible purpose.