This work, copyright 2003 by Randy Beck, was originally published in the UC Davis Law Review, Vol. 36, pp. 407-454, copyright 2003 by The Regents of the University of California. All rights reserved. Reprinted with permission.


Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a statute satisfies constitutional standards. Drawing upon Chief Justice Marshall's anonymous essays explaining McCulloch, this article rejects that reading of the pretext passage. Section II argues that the grounds invoked for invalidating legislation in the recent Fourteenth Amendment cases constitute forms of means-end pretext review consistent with this corrected reading of McCulloch. Section III relates the Fourteenth Amendment case law to the Supreme Court's recent commerce power decision in Lopez and Morrison.