9 Pages Posted: 24 Aug 2020
Date Written: August 20, 2020
This short essay replies to Professor Steven Smith’s response to my article, Animus and Its Discontents, 71 Fla. L. Rev. 155 (2019). In his response, Professor Smith critiques the idea of animus by contending that that very idea of “animus” connotes bad subjective motivations. Such connotations, he argues, both corrode democratic discourse and reveal animus’s foundation in an incoherent understanding of how government decision-making is made.
This reply contends that courts can develop a more objective understanding of animus. Such an understanding both moderates the corrosion critique and places the concept of intent, and animus in particular, on a firmer legal footing. It concludes that one can, in fact, develop a theory of unconstitutional animus that is objectively correct.
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