Espinoza v. Montana Department of Revenue is a new and important Supreme Court case scheduled to be argued later this month that concerns whether prohibiting parents from using tax credits for private religious schooling, where the state made the credit available for private religious and non-religious schooling alike, violates the Constitution. After finding that using the credit for religious schools would violate the Montana State Constitution’s Blaine Amendment, the Montana Supreme Court struck down the entire statutory scheme. We’ve got a podcast on the case over here as an introduction to it.

Over at the Volokh Conspiracy, Professor Eugene Volokh asks the question whether the Montana Supreme Court’s decision religiously discriminatory if the program is now completely dead–that is, if all private schools, religious and secular, are prohibited from using the credits. He posts an interesting answer from an attorney at the Institute for Justice that it is, because the motive for striking down the program in its entirety was discriminatory as to religion: “Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go.” There are race discrimination precedents for this sort of reasoning, but also the problematic Palmer v. Thompson that needs to be explained as distinctive with respect to the state of the record.

All of this worthwhile exchange led me to think generally about motive in American law. It strikes me that much of the utilitarian-inflected skepticism about motive’s relevance in criminal law and tort law has barely touched constitutional law at all. Jeremy Bentham’s view in his Introduction to the Principles of Morals Legislation was that the emotions motivating human behavior were unregulable. All that could be done was to punish behavior that actors expected to cause harm. Motivations were basically irrelevant to the law–vestiges of a time when law was unhealthfully saturated with morality. John Austin likewise distinguished between cognitive states and desiderative states in attempting to hive off intention from motive (Lectures on Jurisprudence). And these theorists were major influences on the thought of James Fitzjames Stephen and Oliver Wendell Holmes, Jr., and, later and by extension, people like Herbert Wechsler and William Prosser in their respective disciplines, turning criminal law and tort law decidedly away from an emphasis on motive.

Not at all so for constitutional law, however. Since at least the early twentieth century, motive has played a major (indeed, perhaps *the leading*) role in evaluating the permissibility of various government policies and projects. I suppose the difference can be explained away on the basis that constitutional law concerns the government’s motive, while criminal law and tort law would concern the individual’s motive. But why should we be more or less skeptical about the role of motive in the law depending on whether we are considering government or individual motives? The government is made up of individuals with motives, after all. Perhaps there is a historically specific reason for the focus on motive in constitutional law connected to the gravity of the plight of African Americans and the situation of slavery in American law and history. But there are very grave sorts of crimes and torts as well, and yet many theorists today continue to follow the view that motive ought not to matter in these other areas.

In fact, motive often does matter greatly in criminal law and tort law, as I’ll have occasion to discuss in more depth soon, drawing from a new paper I’ll post. Still, it’s interesting that the “irrelevance of motive” position still has strong adherents in criminal and tort law, but very few in constitutional law.