Query

[Robin Charlow]

An interesting question might be whether the consideration of shifting
justifications (or the weight accorded them) depends on the
constitutional right in issue.

Robin Charlow
Hofstra University School of Law
Hempstead, New York  11549
email: lawrdc at hofstra.edu
phone (516) 463-5166

>>> "Lederman, Marty" <Marty.Lederman at USDOJ.GOV> 11/30/99 10:21AM >>>
The standard cite is Bolger v. Youngs Drug Products Corp., 463 U.S. 60,
70-71 (1983):

"The Government does not purport to rely on justifications for the
[Comstock Act] offered during the 19th Century. Instead, it advances
interests that concededly were not asserted when the prohibition was
enacted into law.  This reliance is permissible since the insufficiency
of the original motivation does not diminish other interests that the
restriction may now serve."

Citing this passage, the Court last term in Greater New Orleans, 119 S.
Ct. at 1932, stated:  "Moreover, enacted congressional policy and
`governmental interests' are not necessarily equivalents for purposes of
commercial speech analysis."

See also Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978)
("the fact that the original motivation behind the ban on solicitation
today might be considered an insufficient justification for its
perpetuation does not detract from the force of the other interests the
ban continues to serve").

Marty Lederman

-----Original Message-----
From: Pfander, Jim
Sent: Tuesday, November 30, 1999 9:34 AM
To: CONLAWPROF at listserv.ucla.edu@inetgw2
Subject: Query


Friends

A colleague of mine, Steve Ross, (who's working on a book on
comparative
US-Canada constitutional law) posed the following question and I agreed
to
forward it to the listserv:

(1) When courts in both countries carefully scrutinize legislation
that
impinges on free expression, they measure the restraint against a
"compelling state interest" (United States) or a "pressing and
substantial
objective" (Canada). Butler wrestled with the "shifting purpose"
problem -
what happens when legislation was originally enacted to accomplish a
particular public purpose that would no longer be "compelling" or
"substantial," but can now be defended as necessary to achieve another
more
legitimate public purpose. In R. v. Big M Drug Mart Ltd., [1985] 1
S.C.R.
295, the Supreme Court of Canada struck down legislation limiting
business
activities on Sunday, rejecting the government's efforts to transform
a
now-illegitimate desire to facilitate rest on the Christian sabbath
into a
legitimate desire to facilitate a uniform day of rest for secular
purposes.
Some have suggested that Sopinka, J., engaged in a bit of
sleight-of-hand to
transform the Criminal Code's obscenity provisions from serving the
now-outmoded purpose of maintaining a standard of public morality to a
feminist-oriented protection against the degradation of women that was
not
likely intended by Parliament when the statute was enacted.

Query: Can you think off-hand of a U.S. case that wrestles with this
issue?
You may send replies directly to Steve, off list, at the following
address:

Professor Stephen F. Ross
University of Illinois College of Law
504 E. Pennsylvania Avenue
Champaign, IL  61820
(217) 333-2502
fax: (217) 244-1478
sross at law.uiuc.edu

Or if you prefer, I'd be happy to pass them along to him.

Thanks,

Jim Pfander

James E. Pfander
University of Illinois
College of Law
504 E. Pennsylvania Avenue
Champaign, Illinois  61820
(217)333-8237
jpfander at law.uiuc.edu