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Washington v. Davis, Village of Arlington Heights v. Metropolitan Housing Development Corp., Causation principle, Legislative motive, Administrative motive, Constitutional adjudication, John Hart Ely, Paul Brest


Constitutional Law | Legal History


Recent decisions of the Supreme Court have not been kind to those who favor an expansive reading of the equal protection clause. Last Term, in Washington v. Davis, the Court held that the disproportionate impact of governmental action on minority groups is not unconstitutional unless accompanied by proof of intentional discrimination. This Term, in Village of Arlington Heights v. Metropolitan Housing Development Corp., the Court reinforced the intent barrier to the finding of equal protection violations. Mr. Eisenberg argues in this Article that the Washington test is too harsh, and was required neither by practical necessity nor by constitutional mandates.

The author ambitiously proposes appropriate constitutional roles for impact and motive in cases brought under the equal protection clause and the free speech and religion clauses. In the first Part, Mr. Eisenberg develops a new theory of disproportionate impact, the "causation principle," which will permit courts to find equal protection violations when uneven impact is accompanied by factors more susceptible to proof than intentional discrimination. As a complement to the causation principle, the author proposes a balancing test that will enable the Court to take into account numerous interests that cannot be considered under the present rigid system of suspect classifications and compelling state interests.

In the second Part, Mr. Eisenberg explores the confusion that has surrounded the Supreme Court's pronouncements on the role of motive. He refutes arguments that courts should not inquire into legislative and administrative motive, and develops his own theory of motive based on his concept of "rights of equality."

In the final Part, the author illustrates his theories by applying them to the religion clauses of the first amendment. As in the preceding sections, he develops his theory against a background of factual situations drawn from actual cases.

Courts and scholars alike will find this piece provocative and controversial. Mr. Eisenberg's analysis criticizes not only the Supreme Court, but also such distinguished constitutional scholars as Professors John Hart Ely and Paul Brest. Yet even those who disagree with the author will find his approach creative and insightful.

Publication Citation

Published in: New York University Law Review, vol. 52, no. 1 (April 1977).