This Article will examine the existing methods of analysis employed by courts in reviewing primarily aesthetic regulations, as well as the way in which those methods have been affected by the courts' continually evolving interpretation of the concept of general welfare. The Article argues that in many cases in which regulations based solely or primarily on aesthetic considerations have been upheld, the essential constitutional inquiries have been misdirected. This is because "nonaesthetic" justifications are asserted that either are wholly derived from aesthetic benefits, or have no basis in fact--and need none because of the presumption of constitutionality. Because the more recent interpretations of the general welfare provide new "nonaesthetic" justifications, the traditional rule that aesthetics alone is not a proper basis for regulation now has virtually no discernible effect on the outcome of the aesthetic regulation cases.
This Article suggests that, although the minority rule that a regulation may be based solely on aesthetics is laudable, the alternative, traditional rule is certainly not without merit. The purpose of this Article is not to criticize the traditional rule itself, but rather the manner in which it is applied by the courts. This Article argues that, under either rule, aesthetics should be taken into account in weighing the significance of the public interests in regulation against the private interests in freedom from regulation. This balancing test, however, is unduly weighted in favor of the validity of the regulation by the presumption of constitutionality--permitting a court to assume the existence of "nonaesthetic" economic,health or safety purposes for the regulations that may have little or no basis in fact. When such presumptions are indulged by a court whose formal rule is that aesthetics alone is insufficient, the rule becomes meaningless, and regulations based solely or predominantly on aesthetic considerations are inevitably held valid. This Article identifies some of the tenuous "nonaesthetic" considerations that have been presumed in recent cases and suggests that unless the courts are willing to accept that aesthetics alone is sufficient, acceptance of tenuous "nonaesthetic" rationales must be avoided if the traditional rule is to have meaning.
Beverly A. Rowlett,
Aesthetic Regulation Under the Police Power: The New General Welfare and the Presumption of Constitutionality,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss3/3