The history of the declaration that the equal protection clause prohibits legislation which is discriminatory takes us from the Yick Wo to the Takahashi cases. The doctrine is variously phrased. Sometimes it is expressed in the rule that, at least when touching civil rights, legislation must be "based on more than prejudice." Sometimes the Court condemns "oppressive discrimination" or "unreasonable and arbitrary discrimination" against certain groups. In Yick Wo v. Hopkins the discrimination struck down was one for which no reason existed "except hostility to the [Chinese] race and nationality" and which, therefore, "in the eye of the law is not justified." In Truax v. Raich Mr. Justice Hughes said that "It is no answer to say, as it is argued, that the act proceeds upon the presumption that 'the employment of aliens unless restrained was a peril to the public welfare.' The discrimination against aliens in the wide range of employments to which the act relates is made an end in itself . . ." And to permit this, Hughes adds, would be to convert the equal protection clause into "a barren form of words." In Korematsu v. United States this doctrine was repeated with emphasis: "Pressing public necessity may sometimes justify the existence of such restrictions" curtailing "the civil rights of a single racial group. . . ." "Racial antagonism never can." Again, in Takahashi v. Fish and Game Commission the Court asserted that a statute of Congress and the Fourteenth Amendment "protect 'all persons' against state legislation bearing unequally upon them either because of alienage or color." Finally, in Kotch v. Board of River Pilot Commissioners Mr. Justice Black stated: "This selective application of a regulation is discrimination in the broad sense, but it may or may not deny equal protection of the laws. Clearly, it might offend that constitutional safeguard if it rested on grounds wholly irrelevant to the achievement of the regulation's objectives. An example would be a law applied to deny a person a right to earn a living or hold any job because of hostility to his particular race, religion, beliefs, or because of any other reason having no reasonable relation to the regulated activities."
What is striking about these statements is the use of such notions as "hostility" and "antagonism." Laws are invalidated by the Court as discriminatory because they are expressions of hostility or antagonism to certain groups of individuals. The Korematsu case is a particularly forceful example. In justifying the war-time measures against American citizens of Japanese ancestry the Court found it necessary to assert that the aim of Congress and the Executive was protection against sabotage and that "Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice . . . Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire. . . ." This is surely a judgment about legislative and executive motive, and apparently the case turns upon whether the exclusion order is an expression of racial prejudice.
It is indeed difficult to see that anything else is involved in these discriminatory legislative cases than questions of motivation. Hostility, antagonism, prejudice—these surely can be predicated not of laws but of men; they are attitudes, states of mind, feelings, and they are qualities of law-makers, not of laws.
Viewed in this light the prohibition against discriminatory legislation is a demand for purity of motive. It erects a constitutional barrier against legislative motives of hate, prejudice, vengeance, hostility, or, alternatively, of favoritism, and partiality. The imposition of special burdens, the granting of special benefits, must always be justified. They can only be justified as being directed at the elimination of some social evil, the achievement of some public good. When and if the proscribed motives replace a concern for the public good as the "purpose" of the law, there is a violation of the equal protection prohibition against discriminatory legislation.
But only to state or clarify the meaning of the discriminatory legislation doctrine in these terms is to understand the Court's reluctance to use this doctrine freely. Whenever it does so it is in the unenviable position of calling into question the integrity of legislative motive. Mr. Justice Murphy, concurring in the Oyama opinion, was perfectly willing to invalidate California's alien land law as an expression of "racism," as "spawned of the great anti-Oriental virus." He was ready to examine the circumstances surrounding the original enactment of the alien land law to over-ride California's disclaimer of "any implication that the Alien Land Law is racist in its origin, purpose, or effect." But the majority of the Court has been less willing than Mr. Justice Murphy to follow this line. Should the temper of the Court change, it could, no doubt, find that segregation laws aim at white supremacy or are spawned of the great anti-Negro virus and thus make belated amends for the shameful history of the "separate but equal" evasion.
But more than a reluctance to question the integrity of legislative motive is at stake. To become involved in the search for motives, in the analysis or psychoanalysis of legislative behavior, is a task any sensible mortal might well shun in the easiest of circumstances. Add the fact that we are dealing with a sizeable body of men and the task becomes virtually hopeless. For it cannot be taken for granted that any particular law is the product of a common rather than the resultant of conflicting motives.
Moreover, the very demand for a non-partisan and impartial attitude on the part of legislators meets with opposition from the widespread view that a disinterested legislator is in fact betraying the special interests of his constituents, which it is his chief function to promote.
Finally, the consideration of motive is complicated by the fact that it is altogether possible for a law which is the expression of a forbidden motive to be a good law. What is to be done with a law which, passed with the most questionable of motives, still makes a positive contribution to the public good? Suppose the legislature decides to "get" Standard Oil, or Lovett, or Petrillo, but does so through a law which hits all monopolies, all government employees, or all labor unions. Does the forbidden motive vitiate a law that may operate generally and to the public advantage?
(Joseph Tussman and Jacobus tenBroek, "The Equal Protection of the Laws," California Law Review 37 [September 1949]: 341-81, at 357-60 [brackets, ellipses, and italics in original; footnotes omitted])
Keith Burgess-Jackson, J.D., Ph.D. 