Abstract
The idea that a court may invalidate a law by finding it to have been motivated by “animus”—or hatred, or “a bare desire to harm a politically unpopular group”—is “flowering,” as Professor William Araiza notes in his article Animus and Its Discontents. The idea has also provoked a variety of objections. One objection asserts that judicial decisions grounded in accusations of “animus” constitute a “jurisprudence of denigration,” as I have called it, that poisons public discourse and aggravates cultural polarization. We might call this the “denigration objection.”On this point, Professor Araiza seems ambivalent. In his wide-ranging and thoughtful defense of the animus approach, he sometimes suggests, somewhat regretfully, that vilification of groups who lose in constitutional struggles may simply be a necessary part of the development of our collective commitments. He might be right. After all, we do think that “police torturers,” “censors,” “segregationists,” “sexists,” “and now the homophobes” are, basically, wicked. Don’t we? Wouldn’t we be morally deficient if we didn’t think this?
At other points, however, Professor Araiza finds the denigration objection troublesome—indeed, he suggests that it represents “the ultimate challenge facing the animus doctrine”—and he tries, if not to dissolve or deflect the objection entirely, at least to mitigate its force. His strategy consists primarily of reinterpreting animus not as “subjective ill will” but rather as an “objective” fact or quality. So, does this reinterpretation succeed in deflecting or at least partly deflating the denigration objection? I don’t think so. In this comment, I will try to explain why. Read More.