LEGISLATION

In addition to the separation of powers, there are at least two intersections of the Constitution and the legislative process. One concerns the obligation and capacity of legislatures to assess the constitutionality of their proposed enactments. The other concerns the federal judiciary's role in inducing legislatures to meet their constitutional obligations. Within this context there are issues common to state and congressional lawmaking.

The American constitutional scheme obligates legislatures to assess the constitutionality of proposed enactments and to enact only legislation they deem constitutionally permissible. Although this proposition may seem obvious, it has often been contradicted by respectable lawmakers, who assert that legislatures should engage in policymaking without regard to the Constitution and leave constitutional questions exclusively to the courts. Therefore the reasons that legislatures are obligated, no less than courts, to determine the constitutionality of proposed enactments deserve explanation.

If, as Chief Justice john marshall asserted in marbury v. madison (1803), the Constitution is a law paramount to ordinary legislation, then to assert that legislatures need not consult the Constitution is the equivalent of asserting that individuals need not consult the law before acting. To be sure, people sometimes act in disregard of the law, subject only to the risk of sanctions if they are caught and a court holds their actions to be unlawful. But it would be perverse to conclude from this observation that we are not obligated to obey the law.

The structure and text of the Constitution certainly imply that legislatures must initially determine the legality of their enactments. For example, how would Congress know whether it had the authority to enact a bill without consulting Article I and the other provisions that delegate limited powers to the national government? Indeed, some provisions of the Constitution are explicitly addressed to legislators. Article I, section 9, provides, "No bill of attainder or ex post facto law shall be passed." The first amendment says, "Congress shall make no law," and the fourteenth amendment's prohibitions begin with the words, "No state shall make or enforce any law.…" Article VI binds legislators and officials "by Oath or Affirmation to support this Constitution.…" Although this command does not entail that all constitutional questions are open to all institutions at all times, it does imply that a legislator must vote only for legislation that he or she believes is authorized by the Constitution. If history matters, the obligation of legislatures to interpret the Constitution was affirmed and acted on by various of the Framers and by early legislators and Presidents—some of whom, indeed, expressed this duty or prerogative even in the face of contrary judicial interpretations.

The existence of judicial review is sometimes thought to relieve legislatures of the obligations to determine the constitutionality of their enactments. But Chief Justice Marshall's classic justifications for judicial review in Marbury do not necessarily imply a privileged judicial function. As Herbert Wechsler wrote: "Federal courts, including the Supreme Court, do not pass on constitutional questions because there is a special function vested in them to enforce the Constitution or police the other agencies of government. They do so rather for the reason that they must decide a litigated issue that is otherwise within their jurisdiction and in doing so they must give effect to the supreme law of the land. That is, at least, what Marbury v. Madison was all about." (Wechsler, 1965, p. 1006.) Other arguments for judicial review have accorded the judiciary a special role, and in cooper v. aaron (1958) the modern Court claimed that it was "supreme in the exposition of the law of the Constitution." But the Court has never implied that judicial supremacy implies judicial exclusively, or that its privileged position relieves other institutions of the responsibility for making constitutional judgments.

Indeed, some constitutional issues—so-called political questions—may be committed to the legislative and executive branches to the exclusion of the judiciary. For example, it is widely assumed that the Senate's judgment in an impeachment proceeding is not reviewable by the courts even though the decision may involve controverted constitutional questions, and even though the Senate's role in cases of impeachment is more judicial than legislative. In such cases, at least, if the legislature does not consider the constitutional questions, no one will.

If legislatures are obligated to consider constitutional questions, what deference, if any, should they accord prior judicial interpretations of the Constitution? In what might be called the judicial supremacy view, a legislature is in essentially the same position as a state or lower federal court: it must treat the Supreme Court's rulings as authoritative and binding. This was the view expressed by the Court in Cooper v. Aaron. Quoting Marshall's assertion in Marbury that "[i]t is emphatically the province and the duty of the judicial department to say what the law is," the Justices continued: "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

The polar view is that legislators and other officials may, or must, apply the Constitution according to their best lights. This position was asserted by Thomas Jefferson, andrew jackson, and abraham lincoln, among others. In vetoing the bill to recharter the Bank of the United States in 1832, Jackson wrote:

It is maintained by advocates of the bank that its constitutionality in all its features ought to be considered settled by the decision of the Supreme Court [in mcculloch v. maryland (1819)]. To this conclusion I can not assent.… The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.

The issues presented by these opposed positions are of more than theoretical or historical interest. They have surfaced in recent years in debates over Congress's authority under section 5 of the Fourteenth Amendment to interpret or apply the amendment differently from the Court, and over Congress's power to limit the jurisdiction of federal courts over particular issues. For present purposes, I will assume that Congress, as well as state legislatures, must operate within the constitutional doctrines exposited by the United States Supreme Court. What does this obligation entail?

The dimensions of legislative responsibility and some of the difficulties in meeting it are illustrated by considering a bill introduced in the 89th Congress to punish the destruction of draft cards. The bill was enacted in 1965, seemingly in response to public draft card burning to protest the vietnam war. It was challenged on First Amendment grounds and upheld by the Court in united states v. o ' brien (1968).

The governing constitutional standard (as the Court later recapitulated it in O'Brien) was that "a governmental regulation is sufficiently justified … if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."

Because this area of judicial doctrine was already well developed in 1965, legislators considering the draft card destruction law did not have to engage in much independent constitutional interpretation. They were, however, required to apply existing doctrine to the situation that faced them.

First, a legislator had to determine that his or her reasons for supporting the bill were "unrelated to the suppression of free expression." This obligation meant that he could not vote for the bill if his dominant, or causative, reason for favoring it was to suppress antiwar protests (rather than, say, to facilitate the administration of the selective service). The obligation demanded only introspection, a modicum of self-awareness, and the courage or will to follow the law.

It is worth pausing for a moment to ask why the Constitution should be concerned with a legislator's motivation in voting for a measure rather than simply with the legislation itself. The answer begins with the observation that the First Amendment is designed to protect citizens' freedom to protest against government policies. The Amendment does not, however, forbid all laws that inhibit protests to any extent. For example, the Congress surely may prohibit burning anything, including draft cards, if the activity poses a fire hazard to property that Congress has the power to protect. Thus, legislators have discretion to compromise constitutional values in the pursuit of other legitimate ends of government. However, as the Court's reference to "important or substantial" interests suggests, the First Amendment demands that a legislator treat a law's inhibition of expression as a cost, indeed a cost that should not be lightly imposed. But a legislator who votes for the bill in order to suppress protest, treats the inhibition as a benefit, not a cost. He has confused the credits and debits column on the constitutional balance sheet, for he seeks to bring about the very result that the First Amendment seeks to avert.

The second factual determination—actually a mixture of law, fact, and judgment—stems from the requirement that the law further an "important or substantial governmental interest." In O'Brien the Court was required to speculate about the nature and importance of the interests furthered by the draft card law. As happens frequently in matters concerning the national defense, the Court gave Congress the benefit of the doubt. But, of course, the legislators know what ends they intend a law to serve. Judgments about the importance of those ends, and how well a proposed law will actually accomplish them, are among the core responsibilities of legislators—who do not owe themselves any benefit of the doubt. It would be ironic, to say the least, if the Court deferred to Congress's judgments in these matters when Congress had not actually considered the issues carefully and in good faith.

The preceding paragraphs have not distinguished between the responsibilities of "legislators" and the "legislature." How, in fact, is responsibility for constitutional decision making allocated within the lawmaking process?

The answer seems easiest with respect to motivation. Granting that not even psychoanalysis can always reveal our deepest motivations, a conscientious legislator usually knows why he or she supports or opposes a law. (A contrary position would call into doubt the very foundations of the legislative process.) The Constitution demands that legislators assure themselves that illicit motivations, such as suppressing expression or disadvantaging racial minorities, play no role in their decisions to support the legislation. A legislator who "personally" does not care to pursue an illicit end but who supports a measure to satisfy her constituents' or colleagues' desires for those ends must be taken to have incorporated their ends as her own.

However intimately legislators know their own minds, they often lack the expertise and time to assimilate the complex factual and legal information bearing on the constitutionality of a proposed law. In the ordinary run of cases, these issues must be addressed and resolved through institutional mechanisms. A number of such mechanisms exist and are actually employed.

Federal legislation is typically drafted by lawyers and other specialists—either in an executive agency or department or in a congressional committee—who are familiar with any potential constitutional issues presented by the legislation. The committee to which a bill is referred can call upon its own legal staff or on the American Law Division of the Congressional Research Service of the Library of Congress for assistance with constitutional questions. Individual legislators can also seek advice from the research service and from their own staffs, and constitutional issues may be raised in debates on the floor of the House and Senate. Before signing a bill, the President can consult with the Office of Legal Counsel or seek an opinion from the attorney general. Although most state legislators cannot avail themselves of such rich resources, all have analogous methods for assessing the constitutionality of proposed legislation.

It is sometimes said that legislators have too little time and too much political interest to take constitutional issues seriously. Surely, however, this remark cannot justify legislative inattention to questions of constitutionality—unless one believes that legislators should be held to a lower standard of law-abidingness than individuals or enterprises, who may also lack the time or inclination to follow the law. To the extent that the observation is accurate, it is a source of concern to anyone committed to constitutional democracy.

The principal deterrent against unconstitutional legislative action is the threat of judicial invalidation of a law on the ground of its substantive unconstitutionality. From time to time, courts have also engaged in what might be called "procedural review" of legislative decisions—review that focuses on the process by which the law was enacted.

Procedural review encompasses two different inquiries. One is whether the legislators acted out of unconstitutional motives; the other is whether the legislators adequately considered the factual and legal bases for the law. Chief Justice Marshall alluded to both inquiries in McCulloch v. Maryland (1819). With respect to unconstitutional motivation, he wrote: "Should Congress, … under the pretext of executing its powers, pass laws for the accomplishment of objectives not entrusted to the government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land." And he invoked the Executive's and Congress's attention to the underlying constitutional issues as a basis for judicial deference to their decision:

The bill for incorporating the [first] bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became law.…It would require no ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and plain usurpation, to which the constitution gives no countenance.

Judicial inquiry into legislative motivation has had a checkered career. The Court in hammer v. dagenhart (1918) and bailey v. drexel furniture company (1922) relied on Marshall's "pretext" statement to strike down federal child labor legislation, and the Court in lochner v. new york (1905) expressed doubt whether the maximum hours law had been adopted for permissible motives.

Inquiries into legislative motivation declined with the judicial modesty of the late 1930s, but it reappeared with the warren court's resurgence of activism. The Court in abington school district v. schempp (1963) articulated this standard for assessing establishment of religion claims: "[W]hat are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution." epperson v. arkansas (1968) applied the "purpose" aspect of this test to strike down a law forbidding the teaching of evolutionary theory. gomillion v. lightfoot (1960) struck down the Alabama legislature's redrawing of the boundaries of Tuskeegee on the ground that it was designed to exclude black citizens from the city limits. And griffin v. prince edward county school board (1964) held that the county could not constitutionally close its public schools with the motive of avoiding integration.

In contrast to these decisions, United States v. O'Brien (1968) refused to consider the defendant's contention that Congress enacted the draft-card destruction law in order to suppress antiwar protest rather than for any legitimate administrative purposes. And palmer v. thompson (1971) dismissed the plaintiff's claim that Jackson, Mississippi, had closed its swimming pools in order to avoid integrating them. Writing for the Court in Palmer, Justice hugo l. black emphasized that it was extremely difficult to determine an official's motivation and especially difficult "to determine the 'sole' or 'dominant' motivation behind the choices of a group of legislators." Black also remarked that "there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If a law is struck down for this reason, rather than because of its facial contents or effect, it would presumably be valid as soon as the legislature … repassed it for different reasons."

More recently, the Court has repudiated the broadest implications of O'Brien and Palmer. In arlington heights v. metropolitan housing development corporation (1977) Justice lewis f. powell noted the importance of "[p]roof of racially discriminatory intent or purpose" to claims under the equal protection clause. The Court held that the complainant was entitled—indeed, required—to prove that the town's refusal to rezone an area to permit multiple-family housing was discriminatorily motivated. The relevent standard was not whether the decision was solely or even dominantly motivated by racial considerations. Rather, proof that racial motivation played any part in the decision shifts to the decision maker "the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered." In Mt. Healthy City Board of Education v. Doyle (1977) the Court applied a similar standard in reviewing an employee's claim that he had been discharged for exercising First Amendment rights.

The current doctrine is correct. Legislative motives are not always obscure; nor does judicial review usually require inquiring into and aggregating the motives of individual legislators. As Justice Powell noted in Arlington Heights, the bizarrely shaped boundaries of Tuskeegee in Gomillion revealed "a clear pattern, unexplainable on grounds other than race." Sometimes, as in the school-and pool-closing cases, the historical background and sequence of actions leading up to the contested event may reveal invidious purposes. Placing a substantial burden on the complainant and permitting the respondent to show that the decision was in fact overdetermined by legitimate purposes amply protect against judicial invalidation of legislative policies that were based on legitimate considerations.

Indeed, this objective might be better achieved simply by invalidating a law where unconstitutional motives played any substantial role and permitting the legislature to consider the measure anew. Justice Black's concern to the contrary, such a course is not inevitably futile. Although a legislature may disguise its motivation and reenact the law for illicit reasons, it may also choose to reenact the law for entirely legitimate reasons—or the legislature may have lost whatever interest motivated it to act in the first instance. The Alabama legislature did not attempt to gerrymander Tuskeegee again, nor did Prince Edward County try to close its schools again for a "better" reason.

Judicial inquiry into unconstitutional motivation is sometimes said to be especially intrusive because it requires the judiciary to concern itself directly with the legislative process. In an important sense, however, any form of procedural review is less intrusive than substantive review. The Court leaves to the legislature its assigned task of weighing the costs and benefits of proposed legislation, and requires only that the legislature not count a constitutionally illicit objective as a benefit.

When a law is challenged on the ground that it does not further any valid interests, or does not further them sufficiently, the Supreme Court typically does not ask what ends the legislature actually sought to achieve, but hypothesizes possible objectives and asks whether the law can be upheld in terms of them. For example, in United States v. O'Brien, lacking any information about what legitimate objectives Congress actually sought to achieve through the draft card destruction law, the Court upheld the law on the basis of several administrative objectives that the Justices thought the law might serve.

In a widely cited 1972 article Gerald Gunther urged that the Court should be "less willing to supply justifying rationale by exercising its imagination.… [It] should assess the means in terms of legislative purposes that have substantial basis in actuality, not mere conjecture." Gunther asserted that a court need not delve into "actual legislative motivation" but can rely on legislative materials such as debates and reports or on a "state court's or attorney general office's description of purpose."

The Court has sometimes taken this approach. For example, in griswold v. connecticut (1965) the Court held that the state's anticontraceptive law was not justified as a means of deterring illicit sexual intercourse—the only purpose urged by the state attorney general. The Court did not consider whether the law might be upheld on the more plausible (though constitutionally problematic) ground that the Connecticut legislature believed that contraception was immoral. Whatever the justification for this judicial strategy, it is not likely to identify the legislature's actual purposes: state courts and attorneys general have no privileged access to actual legislative purposes but must rely on the same public materials available to the Supreme Court.

In recent years some Justices, and occasionally a majority of the Court, have limited the objectives that can be considered in support of a challenged regulation to the decision maker's (supposed) actual objectives. This course is easiest for a court to follow when statutory limitations on an agency's mandate foreclose it from pursuing a broad range of objectives. For example, hampton v. mow sun wong (1976) invalidated a United States Civil Service regulation barring resident aliens from federal civil service jobs. Writing for the Court, Justice john paul stevens assumed that Congress or the President might constitutionally have adopted such a requirement for reasons of foreign policy, but held that the commission's jurisdiction was limited to adopting regulations to "promote the efficiency of the federal service." Similarly, in regents of the university of california v. bakke (1978), Justice Powell refused to consider whether the university's preferential admissions policy was justified as a remedy for past discrimination, holding that the regents were empowered only to pursue educational objectives.

The Supreme Court has sometimes relied on legislative history to refuse to uphold legislation on the basis of objectives that were not intended. For example, in Weinberger v. Wiesenfeld (1975), in assessing the constitutionality of the "mother's insurance benefit" provision of the social security act, Justice william j. brennan wrote for the Court that "the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against an inquiry into the actual purposes underlying a statutory scheme." Although the provision might have been designed to compensate for past economic discrimination against women, the legislative history belied this purpose and the Court refused to uphold the law on a false basis.

Legislative history is often sparse or nonexistent, however. A complex legislative scheme may make a myriad of classifications; the chances are slight that legislative materials will illuminate the classification challenged in any particular case; and the absence of legislative history does not mean that the legislators did not intend to pursue a particular objective. Partly because of these complexities, judicial efforts to limit the purposes on the basis of which laws can be justified have not followed a consistent pattern. The current state of the law is captured in Kassell v. Consolidated Freightways Corporation (1981), which struck down a state's highway regulation prohibiting double trailers as an undue burden on interstate commerce. In a concurring opinion, Justice Brennan wrote that he would give no deference to the state's arguments based on safety because the law was not actually designed to promote safety but to protect local industries. Justice william h. rehnquist, dissenting, asserted that there was "no authority for the proposition that possible legislative purposes suggested by a state's lawyers should not be considered in commerce clause cases." The plurality avoided the issue by rejecting the state's safety claims on the merits.

inMcCulloch Marshall implied that the bank of the united states act was entitled to special deference because of the attention paid to the constitutional issues within the executive and legislative branches. Because of the difficulty of such an inquiry, however, and perhaps because of its perceived impropriety, the court has seldom conditioned deference on the extent to which the legislature actually considered the factual and legal issues bearing on the constitutional questions at stake. In Textile Workers Union v. Lincoln Mills (1957) the Court gave a strained interpretation to a federal statute in order to avoid a difficult constitutional question of federal jurisdiction, to which Congress had apparently paid no attention. In a separate opinion, Justice felix frankfurter noted that "this Court cannot do what a President sometimes does in returning a bill to Congress. We cannot return this provision to Congress and respectfully request that body to assume the responsibility placed upon it by the Constitution."

In an article on the Lincoln Mills case, alexander m. bickel and Harry Wellington responded that the Court could properly perform such a "remanding function" and that it had sometimes done so, albeit surreptitiously. kent v. dulles (1958) is often cited as an example. Rather than decide whether the secretary of state could constitutionally refuse to issue passports to members of the Communist party, the Court held that Congress had not delegated the secretary this authority, thus in effect returning the matter to Congress. More recently, Justice Stevens, dissenting in fullilove v. klutznick (1980), explicitly urged such a "remand." Fullilove upheld a congressional provision requiring that ten percent of the federal funds allocated to public work projects be used to procure services from minority contractors. Justice Stevens's dissent started from the premise that the Constitution disfavors all racial classifications. Noting that the challenged provision was scarcely discussed in committee or on the floor of the Congress, he wrote:

Although it is traditional for judges to accord the same presumption of regularity to the legislative process no matter how obvious it may be that a busy Congress has acted precipitately, I see no reason why the character of their procedures may not be considered relevant to the decision whether the legislative product has [violated the Constitution]. A holding that the classification was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final decision [of unconstitutionality].… [T]here can be no separation-of-powers objection to a more tentative holding of unconstitutionality based on a failure to follow procedures that guarantee the kind of deliberation that a fundamental constitutional decision of this kind obviously merits.

"Procedural" judicial review, which takes account of the legislature's consideration of relevant constitutional issues, has two objectives. First, it may foster legislative attention to the Constitution in the first instance. Second, it prevents constitutional concerns from falling between two stools—which happens when a court blindly defers to a judgment that the legislature did not in fact make.

Procedural review seems appropriate where a legislature evidently has ignored issues of law or fact that bear on the constitutionality of an enactment. It is questionable whether a general practice of procedural review would prove workable, however. Among other things, a court will have difficulty in assessing the adequacy of constitutional deliberation from external indicia. Justice Powell, concurring in Fullilove, thus responded to the argument that the legislation was not adequately supported by factual findings or debate:

The creation of national rules for the governance of our society simply does not entail the same concept of record-making that is appropriate to a judicial or administrative proceeding. Congress has no responsibility to confine its vision to the facts and evidence adduced by particular parties. One appropriate source [of facts] is the information and expertise that Congress acquires in the consideration and enactment of earlier legislation. After Congress has legislated repeatedly in an area of national concern, its Members gain experience that may reduce the need for fresh hearings or prolonged debate when Congress again considers action in that area.

In addition to the specific powers and limitations found in the Constitution, the Court has interpreted the due process and equal protection clauses to impose general requirements of "rationality" on the outcome of the legislative process. As stated in F. S. Royster Guano Company v. Virginia (1920), the equal protection standard of review requires that "the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.…" The modern Court has usually articulated an even less demanding rational basis requirement: the law, and any classifications it makes, must plausibly promote some permissible ends to some extent.

The rationality standards may provide a minimal judicial safeguard against laws whose only purpose is constitutionally illicit, without requiring a direct inquiry into legislative motivation. But they may also impose a broader requirement on the legislative process. They may imply what Frank Michelman has described as a "public interest" rather than a "public choice" model of the legislative process.

The public interest model is premised on the possibility of shared public values or ends. "[T]he legislature is regarded as the forum for identifying or defining, and acting towards those ends. The process is one of mutual search through joint deliberation, relying on the use of reason supposed to have persuasive force" (Michelman, 1977, p. 149). The public choice model regards "all substantive values and ends … as strictly private.… There is no public or general social interest, there are only concatenations of particular interests or private preferences. There is no reason, only strategy.… There are no good legislators, only shrewd ones; no statesmen; only messengers" (ibid., p. 148).

The constitutional implications of the two models can be illustrated by the city ordinance challenged in railway express agency v. new york (1949). The ordinance prohibited advertisements on the side of vehicles but exempted business delivery vehicles advertising their own business. The most obvious beneficiaries of the exemption were the city's newspapers.

If the Court had adopted a "public choice" model, it would have been pointless to subject the New York ordinance to a rationality requirement: the exemption would be permissible even if its only rationale were to "buy off" the newspapers to get the ordinance enacted or, indeed, to favor the newspapers over other advertisers. Under a "public interest" model, however, the Court would at least ask whether the exemption was related to some extrinsic purpose—and this it did. Justice william o. douglas wrote for the Court that the "local authorities may well have concluded that those who advertise their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use." In a concurring opinion, Justice robert h. jackson pointed to "a real difference between doing in self-interest and doing for hire."

Thus, the Court seems nominally to adhere to a public interest model. But the weakness of the rationality standards, and the Court's generosity in imagining possible rationales for classifications (exemplified by Railway Express Agency itself), suggest some judicial ambivalence about the extent to which this model should be treated as a constitutional norm. There is some academic controversy about both the norm itself and its judicial enforceability.

james bradley thayer asserted in his 1901 biography of John Marshall that judicial review implies a distrust of legislatures and that the legislatures "are growing accustomed to this distrust, and more and more readily incline to justify it, and to shed the consideration of constitutional restraints, … turning that subject over to the courts; and what is worse, they insensibly fall into a habit of assuming that whatever they can constitutionally do they may do.… The tendency of a common and easy resort to this great function is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility." Assessing Thayer's argument is practically impossible, but it seems at least as plausible that the practice of judicial review is a necessary reminder to legislators that their actions are constrained by fundamental public law and not only by their constituents' interests or even their own moral principles.

Thayer's argument nonetheless underscores the point that the Constitution speaks directly to legislatures. In a properly functioning constitutional system, judicial review should be just that—the review of the legislature's considered judgment that the challenged act is constitutionally permissible. Whether this position is "realistic" is another matter. Surely, however, one cannot expect legislators to take their constitutional responsibilities seriously if they and the citizenry at large assume that they have none.

Paul Brest
(1986)

Bibliography

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Brest, Paul 1971 An Approach to the Problem of Unconstitutional Legislative Motive. Supreme Court Review 1971:95–146.

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Gunther, Gerald 1982 In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection. Harvard Law Review 86:1–48.

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