
doi: 10.2307/797357
To get right to the point:' (1) Professor Alexander first wonders how I can urge a smoking-out conception of strict scrutiny while still supporting affirmative action programs that would fail strict scrutiny. "If [such programs] failed strict scrutiny, ... does that not demonstrate that they were unconstitutionally motivated?"2 The answer is no-no more than a speed limit's inability to survive strict scrutiny proves that it was unconstitutionally motivated. Nearly all laws would fail strict scrutiny. That is why strict scrutiny must be an exceptional test, triggered only when there are powerful grounds for suspecting an impermissible purpose.' (2) Professor Alexander's second question is, "What legislative purposes are unconstitutional?"4 He seems to want a complete list; if so, I cannot satisfy his request. My aim was to show that equal protection jurisprudence must confront this difficult question. I do say, on the basis of the Fourteenth Amendment's paradigm cases, that state action is unconstitutional if it purposefully imposes an inferior caste status on any group. Professor Alexander suggests that this principle would be confounded by a statute banning blacks from "high social positions" if the lawmakers had been sincere utilitarians, motivated solely by concern over white pain at black success.5 This objection mistakenly supposes that an illegitimate purpose is somehow
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