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84 Colum. L. Rev. 1689 (1984)
Issue 7

handle is hein.journals/clr84 and id is 1707 raw text is: COLUMBIA LAW REVIEW VOL. 84 NOVEMBER 1984 NO. 7 NAKED PREFERENCES AND THE CONSTITUTION Cass R. Sunstein * INTRODUCTION One of the most striking facts of modern constitutional law is the over- lap-almost the identity-of current tests under many of the most impor- tant clauses of the Constitution: the dormant commerce, privileges and immunities,' equal protection, due process, contract, and eminent domain clauses.2 Although these clauses have different historical roots and were originally directed at different problems, they are united by a common theme and focused on a single underlying evil: the distribution of resources or opportunities to one group rather than another solely on the ground that those favored have exercised the raw political power to obtain what they want. I will call this underlying evil a naked preference. The prohibition of naked preferences captures large areas of doctrine under all six clauses. The privileges and immunities clause, for example, prohibits a state from preferring its citizens over outsiders unless there are perfectly valid independent reasons for the preference.3 The dormant commerce clause allows discrimination against interstate commerce, with its attendant costs to out-of-staters, only if the discrimination is a means of promoting some goal unrelated to protectionism.4 The equal protection clause allows a state to distinguish between one person and another only if there is a plausible connection between the distinction and a legitimate * Assistant Professor of Law, University of Chicago. A.B. 1975, J.D. 1978, Harvard University. The author would like to thank Bruce A. Ackerman, Douglas G. Baird, Walter J. Blum, David P. Currie, Frank H. Easterbrook, Richard A. Epstein, Daniel R. Fischel, Diane Wood Hutchinson, Edward H. Levi, Geoffrey P. Miller, Michael J. Perry, Richard A. Posner, Carol M. Rose, Frederick Schauer, Steven H. Shiffrin, Geoffrey R. Stone, David A. Strauss, Mark V. Tushnet, James Boyd White, Lawrence Wieman, and Hans Zeisel for helpful com- ments on a previous draft. Participants in the Legal Theory Workshop at the Columbia Law School furnished valuable assistance. Richard Herding provided able research assistance and useful suggestions, and the Law and Economics Program of the University of Chicago pro- vided financial support. 1. The reference throughout is to the privileges and immunities clause of article IV, not of the fourteenth amendment. After the Slaughter-House Cases, 83 U.S. 36 (1873), the latter provision became a practical nullity. E. Corwin, The Constitution of the United States of America 1306 (1972). 2. Freedom of religion or speech will not be discussed here, though both may be under- stood as embodying similar principles. See generally P. Kurland, Religion and the Law (1962) (discussing neutrality principle of religion clauses); Stone, Content Regulation and the First Amendment, 25 Win. & Mary L. Rev. 189 (1983) (exploring reasons for special distrust of content-based classifications under free speech clause). 3. Toomer v. Witsell, 334 U.S. 385, 396 (1948). 4. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981). 1689

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