Larry Alexander (University of San Diego School of Law) has posted Aggregating States of Mind: A Response to Fallon on SSRN. Here is the abstract:
With his characteristic care and sophistication, Richard Fallon has turned his attention to, as he puts it, “the sometimes peculiar problems posed by judicial inquiries into the intentions of multimember legislative bodies....” Those problems, of course, stem from the fact that although individual legislators have mental states and motivations, it is unclear to what, if anything, the intention of a legislature refers. We can ask whether some legislators had the same intentions and motivations, and if so, whether the number of such legislators is sufficient for us to say that their intentions and motivations constitute the intentions and motivations of the legislature itself. But is that number, even if empirically ascertainable by courts, the correct number, and if so, why? And what if the number of shared intentions and motivations fall short of that number? Is the resulting absence of the intention and motivation of the legislature a problem, and why?
Fallon’s discussion of legislative intention is complex and nuanced. His bottom line, however, can be simply put: “[u]ltimate determinations of constitutional validity should always depend on the content and effects of challenged legislation, not the subjective intentions of the enacting legislature....” Fallon would, however, permit a role for legislators’ intentions in raising the level of judicial scrutiny and also in assessing the stigmatic effects of legislation.
I am not going to rehash Fallon’s rather intricate arguments here. Instead, I am going to attempt to show why his bottom line cannot be correct. Inquiry into the mental states of legislators is unavoidable in a constitutional system such as ours that (1) grants legislatures the authority to create the legal norms to which we are subject, and (2) contains constitutional provisions that forbid unequal treatment but do not require any specific treatment beyond that prohibition. I shall take these two points up in the order I presented them.