84 Colum. L. Rev. 1689 (1984)
Naked Preferences and the Constitution

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).
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