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14 Chapter 1
Secondly, even legislation that is in fact aimed at blatant favouritism can
be re-couched as a law with a legitimate purpose: ‘[A] single set of social
consequences will be related to a more remote set of consequences, and at
some point along the range of causality there should be some permissible
goal for any conceivable statute’. 64 Thus, a statute aimed at protecting
optometrists can be said to protect public health, 65 a law founded in
xenophobia can be seen as a means to protect public safety, 66 and an
exemption intended to put money in farmers’ pockets can be seen as a device
to promote the American economy. 67 Below I will again return to this
difficulty about the level of abstraction at which a purpose is phrased, but for
now the point is simply that it is not enough to say that ‘legitimate’ means:
‘all those purposes that are not naked preferences’. Whether a law can be
described as a naked preference depends on perspective and opinion, not
logic or fact.
The solution to this may be to look at the actual motivation of
legislation, that is, empirically determine why the legislators passed the
law. If they passed it to protect optometrists it is invalid, but if they passed
it out of concern for public health it is legitimate. Even if the test were
phrased to permit this – which in the US it is not – it would seldom be useful,
as determining actual purpose is virtually if not completely impossible.
There is abundant literature on the problem of determining legislative
motive. 68 In addition to problems about the level of abstraction and
multiple purposes, the biggest problem is assigning a single intent to a body
with multiple members. When each of the legislators may have voted in
favour of a law for a different reason, how can we possibly assign a single
purpose to the law? Of course this problem exists only in the ‘public choice’
theory of politics; the ‘social good’ model on which rationality review is
based avoids it and there are theories on how to deduce purposes in the
value based model. 69
64 Note (n 2 above) 140.
65
Williamson (n 56 above).
66 Union of Refugee Women (n 27 above).
67 Smith v Cahoon 283 US 553 (1931).
68
See, eg, P Brest ‘Palmer v Thompson: An approach to the problem of unconstitutional
legislative motive’ (1971) Supreme Court Review 95; L Alexander ‘Introduction:
Motivation and constitutionality’ (1977 - 1978) 15 San Diego LR 925; A Bickel The least
dangerous branch: The Supreme Court at the bar of politics (1962); JH Ely ‘Legislative and
administrative motivation in constitutional law’ (1970) 79 Yale LJ 1205. See also
Merafong Demarcation Forum v President of the Republic of South Africa 2008 5 SA 171 (CC)
paras 73 - 74.
69 See Ely (n 68 above) 1226 (Ely argues for a ‘consensus theory’ which defines the purpose of
a law as ‘what such laws are generally concerned with, [and] what most legislators intend to
accomplish by most such laws considered in their entirety’. As Bice notes, this theory can
function either as an evidentiary aid which helps to determine which purposes are more
likely, or a normative aid which prevents certain purposes from being accepted (n 4 above)
32. In this context, it would function in the first fashion and would therefore be subject to
judges’ own interpretations of what purpose a law is generally meant to serve. The theory
also seems to fall apart in describing new, unusual or multi-pronged legislation.) Farrell (n 5
above) 4 (Farrell attempts to avoid the problem through his definition of legislative purpose:
‘purpose is not something that exists in the minds of the legislators, either individually or as