The Importance of Abstract State Intent

Here's one of my meta-theories of constitutional law: a wide variety of tricky constitutional problems can be simplified by modeling the government as an abstract corporate person, and drawing inferences about its state of mind from its actions. Or, to put it another way, forget about trying to divine the "legislative intent" of specific flesh-and-blood legislators. Just think about what might have motivated a reasonable government to adopt this measure. I'm most accustomed to thinking of this in the Equal Protection context, where my idea is that the state mayn't ever hold the belief that any of its citizens are inferior, and in the context of the religion clauses, where my idea is that the state mayn't ever adhere to a "comprehensive doctrine," e.g. a religion or a specifically atheist worldview, as opposed to a secular lack of any theological beliefs at all, positive or negative.


So if you have a state measure that disadvantages members of a certain group, you'll learn a lot about whether or not it is a denial of the equal protection of the laws by asking whether it implies that the state implementing it considers those it is disadvantaging inferior, or that it values their lives and interests less than those of others. If so, to my mind that's almost a prima facie violation without anything else. If not, if there's some plausible justification for the measure that doesn't involve devaluing those being disadvantaged, it's a lot more likely that the measure is constitutional, though I wouldn't necessarily say there are no other pathways to an Equal Protection violation.

As for the religion clauses, I would say that whenever the government implements a measure advantaging or disadvantaging a certain religious group (or atheists!), you want to ask whether that measure could reasonably be adopted by a government which neither believed that group's beliefs to be true nor believed them to be false. Ideally you'd want the government simply not to give a damn whether those beliefs are true. There's also an Equal Protection component to the religion clauses, I think, especially the Establishment Clause, wherein we should also ask whether the government thinks members of a religious group (or atheists!) are inferior, independent of its attitude toward the verity of their beliefs. (And yes, these can be different: you can quite plausibly argue of certain religious beliefs that, true or false, they make their adherents worse members of society.)

But I was just doing some reading for my con-law class and I came across another area where I think this is very useful. We mostly remember the case Texas v. Johnson (1989) for its treatment of the flag-burning issue as such, i.e. whether protecting the sanctity of an important national symbol was a sufficient state interest to justify restricting expression. (Spoiler alert: the Court said it isn't.) But before it could even reach that question, Brennan's majority had to show that flag burning was speech in the first place. It feels an awful lot like an action; certainly there is no linguistic content, spoken or written. But it has long been recognized that many actions are sufficiently expressive so as to constitute "speech" for First Amendment purposes. Except, as Brennan's opinion notes, it's clearly not true that any action with an expressive component is protected. That would be, well, ridiculous: you can make a decent argument that every action has a non-zero expressive component, if not a non-trivial one.

Indeed, even First Amendment absolutists, by which I refer to Justices Hugo Black and William O. Douglas, recognize that there's a problem here, a limitation on the Amendment's reach. In Brandenburg v. Ohio, for instance, the Court announced that a state could constitutionally prohibit incitement to imminent lawless action. They struck down the statute in question, which they held did not fall within this category, but suggested that as a test going forward. Black and Douglas concurred, with Douglas' opinion serving as the main expression of their point of view. He argued that "no law" really meant "no law," and that he and Black would therefore strike down even those laws within the Court's newly-announced exception. But he also admitted that there are certain times when the government can forbid speech of a sort, as for instance the cliche of falsely shouting fire in a crowded theater. The key, Douglas suggested, was that in these cases speech is "brigaded with action."

So we have, on the one hand, the principle that many actions can be protected as expression, and on the other hand the principle, accepted even by the absolutists, that some expressions may be prosecuted when sufficiently entangled with actions. Weird stuff happens, then, when expression and action are mixed into the same event. And I think one very clarifying way to think about this is, again, using the abstract state intent model. When expression and action are intermingled and the state seeks to prohibit the mixture, a natural question is, I think, whether the goal is to suppress the action or to suppress the expression. Murder is often very expressive, but we let the government prohibit it as an action. Conversely, there can be some good reasons to ban flag burning, if you also ban some other stuff. Other kinds of burning-random-stuff-in-public, say. But Texas didn't ban that stuff, or if it did, violating the "don't burn shit in public and risk a big ol' fire" ordinance wasn't what they prosecuted Mr. Johnson for. There they were clearly attacking the expression.

As with Equal Protection analysis, there's an asymmetry in the consequence of each answer to this question, and again it tilts against the government. Any time the state's goal is to attack the expression itself, I would tend to become a Black/Douglas absolutist: this is simply not an acceptable goal, and it's very hard to imagine a good enough defense of the law. When, however, the state's goal is to attack the action, we're not done, because then we have two competing legitimate interests, the state's in suppression the action and the individual's in the expression. The only thing to do, really, is balance them, and figure out which is stronger. The murder case is easy. Some cases are harder. Really, most cases are harder, actually, and many of them are actually hard. And some cases will raise questions about causality, for instance how closely we can tie the bad actions committed by incitees to the inciter, or whether we might even hold the inciter responsible for the potential bad actions they were trying to cause. My approach doesn't provide an obvious answer to how we should handle these questions of causality; personally I'm a little more sympathetic to these kinds of claims than Douglas and Black were, but probably more skeptical than most every other Justice. The point is just that conceiving of the problem in terms of the government's abstract intentions can both identify a category of easy cases and frame the problem accurately for the hard cases.

Of course the big question is how you discern the state's intent. It is legendarily easy to come up with a "rational basis" for any given law, if by that phrase you just mean a string of words whose combined definitions sound like a justification for a law. Perhaps "non-self-refuting basis" would be a better term. And this test is definitely not that. It is also not, as I said earlier, an inquiry into specific legislative intent. That's much too subjective; for a masterful demonstration of the problems with legislative intent, see Justice Scalia's A Matter of Interpretation (1997). Seriously, his arguments are compelling, clever, and wittily expressed; it's one of the few works of his where I see the "good Scalia" that a lot of liberals talk about.

And as Scalia says in that book, if I recall correctly, what we want instead of subjective legislative intent is objective intent, i.e. those intentions which can be inferred from the act itself. There's a presumption here that the actual consequences were foreseeable, and therefore intended, though obviously it could be rebutted through evidence that the consequences couldn't have been anticipated. So I would tend to say that any time a state enacts a voting law that results in lots of black people's finding it harder to vote, presumptively that's what they intended. And then you have to ask the question, why would one ever want that? I think there is no answer other than "because you think black people are or should be inferior," which is the centrally improper motive under the Equal Protection Clause. The way I'd like to run this analysis, you're allowed to use a lot of common sense in figuring out why one might have wanted a given result, and you're also allowed to take obvious social facts into consideration. The state is an abstract corporate person but it is not an alien; it lives in its own society. So segregating restrooms by gender is commonly understood not to be about the inferiority of women, in our social setting (though this could change, and if it did the Equal Protection analysis would change with it), whereas segregating them by race is commonly understood to be about the inferiority of blacks. That kind of thinking can apply to abstract, objective state intent just as much as it would in thinking about actual subjective legislative intent.

This also might be a useful place to deploy my grandfather's ideas of the contextual appropriateness of constitutional deference. The idea is that you can tell, by looking at the Constitution itself, when the Courts should be more or less deferential to other branches of government. Congress, for instance, should get a lot of deference in determining the scope of its enumerated powers, because those powers are an expression of trust in Congress, and Congress is a coordinate branch of the federal government charged every bit as much as the Court is with protecting the Constitution. States, on the other hand, get very little deference in Fourteenth Amendment cases, as that Amendment is entirely an expression of distrust of the states. In general states will get less deference than Congress, random lower executive officials will get less deference than the President, etc. And I think a similar kind of process could well work here: the less appropriate deference is under this framework, the more skeptical we should be in ascertaining objective government intent. Or to put it another way, in Fourteenth Amendment cases we should probably find problematic intentions if we merely think them the most likely motivation for the measure in question, whereas in Article 1, Section 8 cases we should be willing to accept non-problematic intentions which are merely plausible, even if a problematic motive might seem somewhat more realistic.

I'm not sure I've ever seen this method used in so many words in a Supreme Court opinion, but I think it is both highly useful and, in a way, necessary. The utility I think I have explained, through examples if nothing else. The necessity comes, I think, from Scalia's observations about legislative intent. It's really problematic! It's problematic in theory, because the legislature isn't just one person and doesn't, therefore, have a well-defined "intent," and it's problematic in practice because it's never very easy to figure out what the intentions of all the relevant legislators were anyway. It's democratically problematic, for reasons that Scalia articulates better than I can but which boil down, I think, to issues of promulgation. But there's a reason courts are so eager to use it. Intent is helpful. It clears a lot of things up. The problem with textualism is that it is notoriously indeterminate, and intent can be very helpful in clearing up those ambiguities. But if we can't use legislative intent in its traditional form, we need a substitute if we're going to get that help, and I think the method I have described is the best way to get that substitute.