Resumen de Legislative Inconsistency and the "Smoking Out" of Illicit Motives

Niels Petersen

• This Article analyzes consistency arguments that are common in the case law of several courts relying on the proportionality principle in their individual rights jurisprudence. It examines cases from five different constitutional or supreme courts, and argues that the main function of consistency considerations is the "smoking out" of illicit motives. Legislative inconsistency is an indication that the legislature also pursued different aims than the ones which were stated explicitly. The parliamentary majority may have been captured by interest groups, or it might have had incentives to discriminate against societal minorities. This hypothesis is confirmed by the analyzed cases. While courts are not able to control the motives of the legislature directly, consistency considerations provide indications for legislative motivation.