In deciding constitutionality of a law, can a court look beyond the text of the law, e.g. to ground realities?

Question

I am not a lawyer. Hopefully my question makes sense.

The question arises out of a specific case, but I want to broaden it to any jurisdiction where you have expertise (America, Europe and anywhere) and to the general principle.

Can a court, in deciding that a law (e.g. an act of parliament or Congress) is unconstitutional, look to the political behaviour of the people passing the law or to the ground realities in the world where the law would be applied, to say that because of these conditions this law would violate constitutional principles even if in different conditions this law would not? In other words, can the court look beyond just the text of the law and the most basic of common sense?

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The rest is TLDR. If you have enough interest, you are welcome to comment on the specifics. The above question could stand alone, with or without the following.

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My mind recently thought back to arguments in India about the Citizenship Amendment Act. Again I am not in the legal profession. I'm not even from India. But it intrigued me at the time.

The act promises citizenship to immigrants who came in before 2014 - plus of course their descendants - from six religions from three neighbouring countries, on the grounds that they allegedly faced persecution.

https://en.wikipedia.org/wiki/Citizenship_(Amendment)_Act,_2019

The opposition said, both in Parliament and before the judges, that this is contrary to Article 14 of the Constitution, which provides for equality before the law. How, say they, does the government arbitrarily list these minorities and these countries? In particular, minority factions of Muslims are not included - how can that be? And are there not other kinds of persecution? So why is the government not making citizens of all persecuted people who have fled to India's territory?

Harish Salve is one of India's foremost lawyers. In televised interviews he rebuts this with the argument: suppose that we decided to pass a law granting Sri Lankan Tamils citizenship if they come to our shores - Sri Lanka had a very volatile history in that regard. Are you going to object to that too? "Hey what about every other kind of deserving person? Why does this bill not mention the rest? Discrimnation!" That would be absurd.

The opposition parties could counterargue that if you look at the BJP's overt agenda and if you look at the backstory of the act (namely the Assam census), you will see that the governing party has no further plans on citizenship requirements and therefore the entire question of discrimination in the granting of citizenship can be answered by this act alone. Another common charge by the opposition is that Muslims who may be bona fide citizens but can't prove their ancestry (because good documentation is not always kept) are in danger, whereas persons from allegedly preferred religions can use this act to protect themselves.

However, these are part of reality and not of the law, so should the judges take them into account?

Answer 1

When it is alleged that a law violates a constitutional right, one almost always needs to bring evidence about how the law impacts that right.

• if you allege your right to free expression is violated, you need to show that
• if you allege the law discriminates, you need to show that
• if you allege the law has an impact on the life, liberty, or security of the person, you need to show that
• etc.

For one example, from Canada, Fraser v. Canada, 2020 SCC 28:

Two types of evidence will be especially helpful in proving that a law has a disproportionate impact on members of a protected group. The first is evidence about the situation of the claimant group. The second is evidence about the results of the law.

Courts will benefit from evidence about the physical, social, cultural or other barriers which provide the “full context of the claimant group’s situation”. This evidence may come from the claimant, from expert witnesses, or through judicial notice. The goal of such evidence is to show that membership in the claimant group is associated with certain characteristics that have disadvantaged members of the group, such as an inability to work on Saturdays or lower aerobic capacity. These links may reveal that seemingly neutral policies are “designed well for some and not for others”. When evaluating evidence about the group, courts should be mindful of the fact that issues which predominantly affect certain populations may be under‑documented. These claimants may have to rely more heavily on their own evidence or evidence from other members of their group, rather than on government reports, academic studies or expert testimony.

Courts will also benefit from evidence about the outcomes that the impugned law or policy (or a substantially similar one) has produced in practice. Evidence about the “results of a system” may provide concrete proof that members of protected groups are being disproportionately impacted. This evidence may include statistics, especially if the pool of people adversely affected by a criterion or standard includes both members of a protected group and members of more advantaged groups.

As an example from the U.S., alleging a racial gerrymander, see Alexander v. South Carolina State Conference of the NAACP, 602 U.S. ___ (2024)

To untangle race from other permissible considerations, we require the plaintiff to show that race was the “predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.”

To make that showing, a plaintiff must prove that the State “subordinated” race-neutral districting criteria such as compactness, contiguity, and core preservation to “racial considerations.” Racial considerations predominate when “[r]ace was the criterion that, in the State's view, could not be compromised” in the drawing of district lines. We have recognized that, “[a]s a practical matter,” challengers will often need to show that the State's chosen map conflicts with traditional redistricting criteria. That is because it may otherwise “be difficult for challengers to find other evidence sufficient to show that race was the overriding factor causing neutral considerations to be cast aside.”

This showing can be made through some combination of direct and circumstantial evidence. Direct evidence often comes in the form of a relevant state actor's express acknowledgment that race played a role in the drawing of district lines. Such concessions are not uncommon because States often admit to considering race for the purpose of satisfying our precedent interpreting the Voting Rights Act. Direct evidence can also be smoked out over the course of litigation. In Cooper, for instance, we offered the hypothetical example of a plaintiff finding “scores of leaked e-mails from state officials instructing their mapmaker to pack as many black voters as possible into a district”. In such instances, if the State cannot satisfy strict scrutiny, direct evidence of this sort amounts to a confession of error.

Proving racial predominance with circumstantial evidence alone is much more difficult. Although we have never invalidated an electoral map in a case in which the plaintiff failed to adduce any direct evidence, we have, at least in theory, kept the door open for those rare instances in which a district's shape is “so bizarre on its face that it discloses a racial design” absent any alternative explanation.