3 6 0C H A P T E R 1 8 ■ L e g a l R e a s o n i n gOn the other side, the Court claimed that discriminatory effect is not suf-
ficient, because discriminatory motive is a necessary condition for a law to be
unconstitutional under the equal protection clause. For this claim to pass the
necessary condition test, there must have been no precedent still in force in
which a law was held unconstitutional under the equal protection clause but
the Court did not find any discriminatory motive. Plessy claimed that Yick
Wo was such a case, but the Court responded that, even if those who passed
the ordinance had no discriminatory motive, the administration of the ordi-
nance in Yick Wo “was held to be a covert attempt on the part of the munici-
pality to make an arbitrary and unjust discrimination against the Chinese
race.” If so, the necessary condition test does not rule out the Court’s claim
that discriminatory motive is necessary for unconstitutionality in this case.
This disagreement reveals the limits on the tests of necessary conditions
and sufficient conditions. These tests are useful when there is a rich body of
coherent precedents. But when there are not enough precedents of the right
kinds, and when the precedents are not coherent, the necessary condition
test and the sufficient condition test cannot be used to rule out conflicting
interpretations of the precedents.
When the actual precedents are not enough, judges sometimes refer to
hypothetical cases. In Plessy, a judge might imagine a law with discrimina-
tory effect but no discriminatory motive. If the judge can show why this law
should be found unconstitutional, this would suggest that a discriminatory
motive is not really necessary for a violation of the equal protection clause.
This takes some imagination, and it also requires judges to apply their moral
beliefs about which laws should be allowed. Some critics deny that moral
arguments should have any legal force, because they are so controversial.
Nonetheless, there is no doubt that judges often do in fact assume such
moral beliefs in arguments from precedents.
A final point to remember is that arguments from precedents are usu-
ally defeasible, like other inductive arguments (see Chapter 8). One reason
is that more precedents might be found, and these new precedents might
conflict with the precedents in the original argument. Another reason is that
any precedent can be overturned. Precedents are not supposed to be over-
turned unless they are very badly mistaken or immoral, but this is always
a possibility. Nonetheless, even though arguments from precedents always
might be refuted in such ways, precedents can still provide reasons for legal
decisions.
So far we have looked at arguments from precedents as ways to deter-
mine what is necessary or sufficient to violate the law. Even after this is de-
termined, the law still must be applied to the facts in the present case. In
Plessy, the Court held that there was no intent to discriminate, because the
statute in Plessy was “reasonable” and “enacted in good faith for the promo-
tion of the public good and not for the annoyance or oppression of a particu-
lar class.” This claim is highly questionable. In his famous dissent, Justice
Harlan denies it when he writes:97364_ch18_ptg01_351-382.indd 360 15/11/13 11:38 AM
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