Optionality and Legislative Motivation
The permissibility of legislative switching among optional rules having been established, consider the following variant on our original hypothetical: City A, constitutionally forbidden to enact a rule targeting those who burn American flags, decides (1) to enact a rule forbidding all public burning of objects immediately upon being informed that someone is about to stage a protest and burn an American flag and (2) then to repeal that rule immediately after the protest.
In other words, City A has adopted - albeit informally - a “metarule” to switch back and forth between enacted rules “No burning allowed” and “Burning allowed” in such a way as to prevent those who wish to burn American flags from doing so but otherwise to allow public burnings.Suppose now that Johnson burns his American flag and is arrested for violating the “no burning” rule, which was enacted immediately before his act - assume he had proper notice of it - and which was repealed immediately thereafter. Does Johnson have a valid freedom of expression objection?
The answer has to be yes. The real rule here - one that persists unchanged over time - is the metarule defined by the rulemaker’s purpose, not the momentary published rules that are, in effect, merely the metarule’s applications. Given optionality and the permissibility of switching, we must treat legislative purpose as material. Otherwise, we would be unable to distinguish the legitimate phenomenon of legislative switching among permissible rules from the illegitimate phenomenon of applying a single impermissible rule constantly over time.
Other examples illustrate this point. Suppose a city wants to bar blacks from the city’s swimming pool. A rule “no public swimming for blacks” would violate the Equal Protection Clause of the United States Constitution. On the other hand, a public swimming pool open to all would be a constitutionally permissible redistribution of wealth, and the closing of the public swimming pool would be a constitutionally permissible libertarian measure.
So the city instructs the lifeguard on duty to hang the “pool open” sign whenever whites show up to swim, and to hang the “pool closed” sign whenever blacks show up. Because the rule “public swimming for whites but not blacks” is unconstitutional, so too is the instruction to the lifeguard. It is the operative rule for constitutional assessment, not the published rules “pool open” and “pool closed,” which are merely its applications.[90] So the rulemaker’s purpose matters whenever we are dealing with rules that are constitutionally optional on their face. The purpose essentially defines the real rule that must be constitutionally evaluated. Is that (purpose-defined) rule constitutionally optional, or is it constitutionally forbidden? This best explains why the United States Supreme Court has deemed legislative purpose to be material in equal protection cases such as Washington v. Davis[91] and Personnel Administrator of Massachusetts v Feeney[92] and in First Amendment cases such as Wayte v. United States.[93] The laws in these cases were constitutionally optional on their face. Therefore, it is material whether they were enacted for reasons that were also constitutionally optional as opposed to constitutionally forbidden.[94]17
Earlier I argued that the permissibility of rules turned on their effects over time. Here I have argued that permissibility turns on the rulemakers’ purposes. Am I not contradicting myself?
The answer is that permissibility turns on both purposes and effects. The legislative purpose behind the rule defines the rule for purposes of evaluation. For instance, City A’s purpose to suppress only the burning of American flags converts its published rule, “No burning of objects in public,” into its real rule, “No burning of American flags in public.” And it is the latter rule that is evaluated by its effects. In other words, ultimately the permissibility of all rules turns on their presumed effects over time. (Remember: their permissibility cannot turn on their effects relative to any given act token; for the same act token that is impermissibly punished under one rule might have been permissibly punished under a different rule.) Purpose is important, however, in determining what the rules actually are.[95]
VII.