Zach Nelson (Yale University – Law School) has posted A Unified Theory of State Interests on SSRN. Here is the abstract:
The Supreme Court has been sneaky. In cases involving constitutional challenges, in which governments assert that certain interests justify their laws or actions, the Court makes secret, unexplained decisions as to which interests merit consideration. Thus, a state may assert several justifications for its law and the Court, without acknowledgment or explanation, will consider only some of them. This Article illuminates the issue and identifies the solution: a framework for determining when state interests exist, which has long been hidden within the Court's constitutional caselaw. That framework reflects a previously unstated theory that unifies the "state interest" concept across all levels of government and all areas of constitutional law. In addition to filling a gap in constitutional law and scholarship, the state-interest framework compels the Court to make public and explicit its decisions concerning state interests asserted by governments in cases of constitutional significance. It also requires courts and practitioners to modify many, if not all, analytic frameworks for constitutional claims by adding the previously ignored step of determining whether state interests asserted by governmental actors actually exist. Perhaps most importantly, it gives new life to Chief Justice Marshall's echoing command to ensure that the end of governmental power be legitimate-i.e., within its proper purposive scope.
A very interest student piece. Recommended.