Smith and Neutrality

[Alan Gunn]

In message Tue, 20 Jan 1998 11:33:06 PST,
  Eugene Volokh <VOLOKH at law.ucla.edu>  writes (in part):

> Rick's "most favored nation" point sounds plausible, but I wonder
> how or whether it can work in practice.  Homicide law provides
> exceptions for accidental homicides (or does that count as an
> exception, or do we consider the broad ban to be on "intentional
> homicides"?), . . .

[snip]
>
> Is homicide law no longer neutral and generally applicable?

   Every law does whatever it does and doesn't do what it doesn't do:
whether what it doesn't do is an "exception" or just something the law never
reached in the first place is a matter of form. See Note, Legislative
Purpose, Rationality, and Equal Protection, 82 Yale L.J. 123 (1972)(by Bob
Nagel). Because no law ever written treats all possible conduct of whatever
sort the same (what would be the point?), no law is "neutral" with respect
to everything.  To ask whether a law is "neutral" as between two specific
things, or persons, is a real question; to ask simply "is it neutral" is
meaningless. "Neutrality" has, I suspect, become a popular term to throw
around because it seems to suggest that there won't be any losers--but there
will be, always. All we can do is choose sides. (For what it's worth--not
much, really--I'd choose Mrs. Smith's, but I wouldn't claim that I was being
neutral, or that this choice is constitutionally compelled.)

>I'd also like to re-ask my question -- what statutes *would* be
> neutral and generally applicable?

   None (or, if you like, all).

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Alan Gunn
Notre Dame Law School