Much has been written of the circumstances under which courts should strike down legislation. The reluctance of Article III courts to strike down interest group legislation as unconstitutional finds its source in two seemingly irreconcilable components of American constitutional theory, both derived from the separation of powers embodied in Articles I, II, and III. The first is the system of checks and balances, which is intended to raise the decision costs of government by requiring that the various branches share power. The second is the basic constitutional premise, embodied in Article I, that the legislature has the power to make law. These two constitutional principles, taken together, imply that judicial interpretation is consistent with the constitutional scheme only if two conditions are satisfied: the interpretive act (1) must result in making legislation more public-regarding by serving as a check on legislative excess and (2) must not intrude on the constitutional authority of the legislature to make law.
Condition 2 ensures that the Constitution's allocation of the lawmaking function to the legislature will remain intact, while Condition 1 reflects the constitutional premise that federal courts improve the operation of the democratic process by serving as a structural check on Congress's tendency to engage in factionalism. Condition 1 is justified by the need to mitigate the harmful effects of interest group domination of the political process. Condition 2 is justified by the basic principle of democratic theory that the power to make law ultimately should reside in representative institutions such as Congress.
While these conditions appear to be irreconcilable, they may be reconciled by recognizing that the constitutional requirement that the judiciary serve as a check on Congress's excesses often is fulfilled by the very act of statutory interpretation itself. The judiciary, using traditional methods of statutory interpretation, inevitably checks legislative excess by serving as a mechanism that encourages passage of public-regarding legislation and impedes passage of interest group bargains. In other words, there need not be overt confrontation between the judicial branch and the legislative branch in order for checking and balancing to take place. Checking legislative abuse is an institutional by-product of the judiciary's traditional role as interpreter of statutes in the resolution of specific legal disputes.
When called upon to interpret a statute, a court has three alternatives. First, it can look beyond the terms of the statute and seek to enforce the terms of the deal between the interest group and the legislature. This "legislation-as-contract" method of statutory interpretation is illegitimate because it violates Condition 1 described above. Specifically, it denies the federal judiciary its proper role in the constitutional scheme as a check on factionalism and legislative excess.
Conversely, a court can identify what it perceives to be a special interest group bargain and strike the deal down on constitutional grounds. While this approach satisfies the terms of Condition 1 by constraining the legislature, as alexander m. bickel observed, it violates Condition 2 by usurping the lawmaking prerogatives of Congress.
Finally, there is what is best called "the traditional approach" which, as the name implies, refers to the classic, time-honored methods of statutory interpretation that judges actually employ to decide cases. This method differs from the "legislation-as-contract" approach in that it counsels judges to interpret statutes based on what the statutes actually say, rather than on what the judges believe the bargain was between the interest group and the legislature. The traditional approach encourages more public-regarding legislation by frequently transforming statutes designed to benefit narrow interest groups into statues that in fact further the public's interests. Unlike the other two approaches, this one enables the judiciary to serve as a check on Congress without interfering with Congress's constitutionally granted authority to make law.
Important constraints on the legislature derive from aspects of the judicial process other than judicial nullification of legislative enactments on constitutional grounds. Although legislative acts are only infrequently declared unconstitutional, more subtle constraints are imposed upon the legislature by the judicial process itself. The very act of statutory construction often transforms statutes designed to benefit narrow interest groups into statutes that in fact further the public interest.
Jonathan R. Macey
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