The term “legislation,” in its narrowest modern usage, denotes the enactment of rules of law by specialized State agencies endowed with high authority and fairly representative of the general population; the term also denotes the rules that result from this process. In a wider sense, legislation includes, in addition, rules of general application enacted by executive, by subordinate administrative, by regional, and by local authorities. Rules of this kind are also known as secondary, or subordinate, or delegated legislation. At times, the term is used in a still broader meaning, in relation to rules stemming from other than State authorities (e.g., church or international legislation).
Legislation, thus understood, presupposes a fair degree of political and legal differentiation. It requires, first, a well-understood distinction between general norms intended to govern human conduct in an indefinite number of future instances and individual norms or commands intended to apply in a specific instance or in a strictly limited number of specific instances only. It requires, second, a well-established distinction between institutions authorized to issue general norms and those not authorized to do so; and more particularly, the setting up of a central agency equipped with this authority—the legislature in the proper sense of the word. It requires, third, a fair degree of consensus that norms thus enacted rank above most other legal rules found in the society. In more primitive legal systems, where such differentiation has not taken place and where society is largely regulated by rules to which metaphysical or customary origin is ascribed and which are regarded as beyond deliberate change by man-made institutions, one can hardly speak of legislation. And in those modern societies where differentiation of functions disappears in the plenitude of power wielded by an individual or by a small collective group—notably in some dictatorships—the concept of legislation as a distinct function suffers a serious setback.
Development of the concept
The term “legislation” derives from the Latin lex. The lex, once Roman law emerged from its primitive stage, was a distinct kind of legal rule of overriding authority and mainly of general application, expressly enacted by the people or on their behalf by some highly placed institutions (monarch, senate), singly or in combination. The same institutions were also regarded as entitled to modify or abrogate a lex once passed. It was therefore a term narrower than ius—the sum total of rules presumed to govern human conduct, whatever their authority, scope, or procedure of formation. It was, more precisely, an especially authoritative rule of the ius civile in the original meaning of the expression (i.e., the law which the State-organized society, civitas, provided for the regulation of conduct within itself), of what is called today “positive law” (i.e., imposed by the State) and of the ius scriptum (written, or enacted, law). Within this area of written positive law, the lex is a specific rule attributed to the highest lawmaking authority, which thus becomes the legislative authority par excellence. By definition, any other rule of positive law is viewed as subject to the lex, and if it acquires a status equal to a lex, it is said, in the language of Justinian’s Institutes (I, II, 4), to “have the force of a lex” (legis habet vigor em).
Whether “nonpositive” law, which claims derivation from religion, from nature, from ethics, from reason, or from various ideological assumptions, is also subject to State-made legislative rules or, on the contrary, represents a “higher law” that states may not transgress, has remained a point of controversy in theory and still more in practice, ever since antiquity. Even custom and judge-made law were often regarded as immune from legislative interference, and not until the seventeenth century in England was the supremacy of legislation over the common law definitely acknowledged.
Several terms in various European languages— lot, legge, ley, Gesetz, zakon, and in English a law (as distinct from the law), but more precisely statute, Act of Parliament, Act of Congress—were coined to conform more or less to the historically developed meaning of lex. Upon closer observation, the criterion of generality appears in all of these to be rather incidental. The Romans had already noted that there are personal laws not intended to establish binding standards for future conduct (leges ... personales quae nee ad exemplum trahuntur). Indeed, individual and special laws continue to form a considerable part of the legislative output in most civilized states. The decisive criterion for identifying legislation as a process and laws as the product of the process is increasingly the formal criterion of the identity of the enacting agency. In a curious reversal of roles, instead of legislation being explained as the activity which aims at the enactment of laws, we tend today to hold as laws those rules which are arrived at by the process of legislation.
Neither in antiquity nor in later times did specialists, let alone general usage, adhere strictly to the above meanings of the terms. In Rome lex was often used instead of ius to denote a whole area of jural regulation (e.g., lex mancipi, lex commissoria); and even another part of Justinian’s codification (Digest I, III, 1) defines lex in a far broader manner than does his Institutes. Lex apparently had already become a highly popular expression, as overworked and used as indiscriminately as law in the English language today. In some other modern languages, the distinctiveness of the term is better preserved because, like Latin, they have a second term at their disposal (loi–droit, leggediritto, Gesetz–Recht, zakon–pravo); but there, too, confusion is not unknown.
With the emergence of the Roman emperor and his appointees as the center of all governmental functions, a special legislative agency and its specific product, the lex, though maintained in theory, lost all practical importance. Differen rules now stemmed largely from the same sources and from the same motivations; it hardly seems worthwhile, therefore, to pay much attention to formal differences between them. The influence of theology on juristic theory in the centuries after Constantine’s conversion to Christianity made the distinction even less meaningful. The three systems of the ius naturale, ius gentium, and ius civile, which the Romans were at such pains to keep distinct, tended to coalesce, the law of the church proper was added to them, and all four claimed ultimate legitimation by the same authority. Both enacted and customary rules of municipal law were occasionally described as leges, but so were the asserted principles of ius gentium and of ius naturale, as well as rules which claimed none but divine authority. Feudalism, too, contributed to this development. A device for maintaining social organization in the face of a weakened central power, it preserved no specific function as that power’s sole prerogative but opened all of them, including the enactment of general rules, to the interplay of bilateral feudal relations; agreement and custom tended to rank above enactment in the legal structure. Lex and its plural leges, though at times used in contradistinction to consuetudines, extended beyond the particular rule and embraced a whole body of rules, being used in this sense concurrently with jus. Lex Salica, lex Romana, lex civilis, leges Langobardorum, and in private international law, lex fori and lex contractus, became technical expressions in which lex stood for jus.
From the eleventh century on, the revival of the original concept was stimulated by the universities, where Roman law dominated the jurists’ thinking. The strengthening of the State at the expense of feudalism, which followed soon after, again lent reality to the distinction between higher-ranking and lower-ranking rules, and between individual and general ones. The statutum was defined as a written, general enactment, and the authority to enact statutes as the potestas statuendi. When exercised by the supreme political authority, it became the potestas legis ferendi. The legis lator, an expression known already in Rome and used there, as was the Greek nomothetes, mainly to denote an individual leader endowed with charisma or exceptional wisdom, like Moses or Solon or Lycurgus, appeared in a French source of the fourteenth century in its modern institutionalized meaning.
Further developments were again intimately connected with the gradual differentiation between the functions of various State agencies. As long as different rules emanating from the prince enjoyed similar status in the legal system, there was not much point in drawing formal distinctions between them. No doubt, certain restrictions were considered binding upon the princes of continental Europe, and some acts called in theory for the consent of representative assemblies. But in actual practice, most of these representative assemblies lost their powers, and the absolute power of the princes became prevalent, sweeping away before its authority all distinctions between basic and subordinate rules. Where, however, the representatives played an active part in the law-making machinery, e.g., in England, the Netherlands, Poland, the Italian and Hanseatic city-republics, and the Swiss cantons, the differentiation between rule-enacting agencies sharpened the differences between the resulting sets of rules. A rule which could be made only with the consent of a representative assembly and had to be modified in the same way was considered higher law than that enacted by mere executive authority. In monarchical countries such as England, the Netherlands, and Poland, this conception was somewhat blurred by the existence of the prince’s “own right” or “prerogative”—a rival system of law impenetrable to the powers of the representative body. Nevertheless, there too the rules enacted by consent of representative bodies emerged as rules of higher authority, both in the consciousness of the population and in juristic practice. These were the rules that became increasingly identified as legislation, first in England and then in continental Europe.
In England special authority was early attributed to enactments agreed upon by the king and an assembly, soon to be divided into two houses. Thus arose the Act of Parliament, the first modern legislative act. The identity of the body which, in addition to the king, participated in the enactment; the procedure of this participation; and the social consensus symbolized by it lent special significance to the enactment. The contents of the act were of minor importance. Quite often its scope was general, but even where the same procedure was observed with respect to a measure of limited scope or applicability, the measure still enjoyed the same high degree of authority. Down to the seventeenth century there were many attempts to contest the special status of Acts of Parliament, to attribute a similar status to certain measures enacted on the king’s sole authority, and to dispute the authority of Acts of Parliament to deviate from the common law; but by the end of that century the superiority of these acts over both king and common law stood unchallenged.
This concept of legislation, identified by the participation of a representative body in the enacting process and given a pre-eminent position in the State’s scale of norms, remained virtually unchanged until the end of the eighteenth century. Both Continental and English philosophers and jurists adopted it and helped to spread it among the growing literate stratum of the population. A change ensued when the United States, followed by France, inaugurated the era of formal constitutions. These, wherever adopted, have displaced the ordinary laws, enacted through the legislative process, from their theoretical and moral preeminence in the legal structure, and—to the extent that the supremacy of the Constitution was accompanied by judicial or other sanctions—the displacement was of practical legal significance as well. Otherwise, legislation and its products—the laws, in the narrow meaning of the word—remained in their place, at or near the apex of the legal structure.
The stress of modern conditions has resulted in complications connected with (a) the complexities inherent in an industrial society, (b) a closer relationship between executive and legislature, (c) a generalized pattern of self-governing units, (d) the problem of meeting emergencies, and (e) the growth of modern dictatorships.
The complexities of modern society, combined with the increased social welfare purposes of the modern State, call for a vastly increased intervention by public authorities in areas of social relations which in former times had been regarded as lying outside the authorities’ field of interest. Both administrative convenience and an increased sensitivity to the “rule of law” and the principle of equal treatment militate against exclusive reliance on ad hoc decisions, demanding instead regulation by general rules. But the very number of the general rules required, the complexity of their subject matter, and the specialized knowledge needed for their formulation make it difficult for the legislature to solve the problems incidental to their enactment. Willy-nilly, legislatures acquiesce nowadays to the enactment by administrative agencies of general rules, which but a few decades ago would have been regarded as reserved to legislation proper.[SeeDelegation of powers.]
This trend was greatly assisted by a major change that has taken place in most countries of the world in the relations between legislatures and the top layers of the executive arm. No longer do these institutions represent two different principles of legitimacy and two different social groupings, often with opposing interests and credos and generally suspicious of each other’s objectives, one centering on the prince, the nobility and the top bureaucracy; the other, on a broader group not intimately associated with the day-to-day conduct of public affairs. Nowadays the government, the top layer of the bureaucracy, and the legislature all trace their authority to the same source—the “people” (whatever the measure of reality or fiction behind this attribution)—and to a large extent share or reflect identical social interests. In those countries where some variety of the parliamentary regime prevails (i.e., one in which the heads of the executive are permanently answerable to the legislature and may be dismissed at the latter’s discretion), it is the practice to place the direction of executive affairs in the hands of a group of persons who not only are for the most part members of the legislature enjoying the confidence of a majority of their fellow members, but are actually the leaders of that majority. In the circumstances, despite disagreements and mutual jealousies which still persist between executive and legislature, their conflicts can in no way be compared in intensity to those which marked the relations between the two in the days when they represented opposing principles of government and divergent social forces. In the modern State a large degree of basic unity of purpose and outlook between the legislature and the executive leadership replaces the fundamental lack of confidence which formerly existed between them.
This new situation explains why parliaments have largely abdicated their policy-making function to governments, whose lead they now tend to accept, but it explains more particularly why the former parliamentary reluctance to let executive agencies enact far-reaching general norms has considerably weakened. Many a statute is no more than an enabling statute authorizing the president, the cabinet, the minister, the subordinate executive department or officer to issue general rules within a very wide range of discretion. At times, special statutory provisions are aimed at exempting such rules and the decisions based on them from effective judicial review. Other general rules are issued by the executive without express authorization by statute, in the exercise of its powers under the Constitution, or of its police powers, or under the theory of the implied powers of government; and the legislature, as long as it does not disagree with the government on major questions of composition or policy, does not generally object. Action which in the former days of struggle between prince and parliament would have been resisted by the latter as usurpation of power, is now accepted as normal, inevitable, or even desirable, in the interest of good government.
This state of affairs is not without its influence on the judiciary and on academic jurisprudence: courts have accepted it, and so have universities. In theory as well as in practice, the border line between legislation and regulations has become blurred, and regulations with more or less general contents are increasingly referred to as “secondary” or “subsidiary” or “delegated” legislation. Statutes passed by a parliamentary body are no longer the only form of legislation; they are distinguished merely by being “primary legislation.” And the body itself is no longer the sole legislator; it is but the “primary legislator.” In Britain this development has been most pronounced and, despite occasional protests from the traditionalist legal profession, is growing stronger. Other countries influenced by English law follow suit, and so do countries of the civil law tradition. In the United States, “delegation of legislative powers” is still rejected in principle, and the country’s courts attempt to enforce this prohibition. But the factors that made for the practice elsewhere are active in the United States as well, and though the character of “legislation” is denied them, far-reaching general norms without much statutory guidance are becoming the rule.
Another kind of “secondary legislation,” widespread in the modern world, is that indulged in by local authorities when making general rules within the scope of their jurisdiction. This trend goes back to medieval towns, many of which had representative institutions at a time when states were still governed autocratically, a circumstance which facilitated the conception of a difference between rules enacted by representative authorities and those made by executive authorities alone. Indeed, the very term “statute” was largely used to denote acts of self-governing local or regional authorities. But while, in premodern times, the jurisdiction of local authorities was often based on special arrangements and charters, it now conforms to a general State-wide pattern. In this pattern, the local authority consists of a predominantly elected representative body and of administrative personnel headed by an individual (mayor) or a small committee of officeholders with departmental responsibilities. Within this structure, the bifurcation into “higher” rules issued by the larger representative body and the acts of the “executive,” bound by those rules, resembles the legislative-executive relationship within the State and justifies the designation by analogy of the “higher” local body as legislature and its output of general rules as legislation. In relation to the State, though, the rule-enacting activity in question is, of course, limited by State agencies and is subject to a variety of controls both before and after enactment. By no means can this activity pretend to “high” status within the total legal structure, however valued the principle of local self-government may be in current political thinking. At most, these acts too could be considered a kind of “secondary legislation” in the British sense. The special designation of “bylaws” points both to the analogy these rules bear to legislation and to the difference between them.[SeeLocal government.]
The discussion of near-legislative activities by local authorities applies equally to representative regional authorities. The size of a regional entity, the scope of its authority, and the over-all status it enjoys in the politico-legal scheme of things do not theoretically affect the situation as described. In the United States this holds true of the school district as well as of the county, in England of the parish as well as of the county, in France of the arrondissement as well as of the département and the région.
It even holds true, to some extent, of regional entities in a federation which by courtesy, tradition, or formal enactment are accorded the dignity of statehood, whatever their precise designation (states in the United States, Australia, India, and Mexico; republics in the Soviet Union and Yugoslavia; provinces in Canada; Länder in Austria and the German Federal Republic; cantons in Switzerland). The scope of jurisdiction of these units is usually much wider, and within that scope they are much freer or altogether free from central controls; their status is anchored in the constitution and is often entrenched against interference by the federal legislature; and tradition or the letter of the constitution may describe them as “sovereign.” Nevertheless, theirs too is an authority derived from a body politic larger than their own. Often there is the added limitation that in case of conflict, a federal statute will prevail over the product of the “member-state” legislation, thus relegating the latter to a clearly subordinate plane.
A further phenomenon which complicates the legislative picture is the emergency regulation. The ordinary regulation (variously known also as executive order, decret, Verordnung) and any action undertaken pursuant to it are characterized by being quite often an execution of a specific statute and, in any case, subject to statutory and constitutional provisions; this, as well as the sanction of judicial control of all regulatory activities, is the principal concomitant of the rule of law. However, genuine emergency conditions are apt to arise —mainly in connection with wars, internal disorders, severe economic crises, and major disasters —which make it imperative to allow for measures that would be free from the time-consuming procedures accompanying modern legislation and yet might deviate from statutory and perhaps even from constitutional provisions. The proclamation by the executive of martial law, of a state of emergency, or of a state of siege has variously served in the past to justify such deviation from the normal rule of law pattern and is still occasionally resorted to, but whether or not accompanied by such proclamation, the emergency regulation (or emergency order) has become the main form of such exercise of executive powers in the twentieth century. Where war was concerned, Great Britain (until 1920) and the United States have found it possible to postpone the enactment of a suitable legal framework of emergency powers until the emergency has actually arisen and to do so by means of ad hoc legislation. Thus the British Defence of the Realm Act and the American Emergency Powers Act were passed in these countries in connection with the two world wars. In many other countries, however, where there are good grounds to fear a more instantaneous emergency, provision for such powers has been made ahead of time as part of the country’s permanent structure, and even Great Britain now has the permanent Emergency Powers Act. The abuse of emergency powers that occurred in central Europe, notably in Germany, in the 1930s has made countries more cautious and has caused them to place emergency powers under increased parliamentary and judicial control. Nevertheless, even regulations passed under this conception of emergency powers approach legislation in the narrow sense of the word: they are not strictly bound by pre-existing statutory law; they enjoy a position of pre-eminence roughly approximating that of statutes; and they are held in check but little by judicial review. It is even more difficult than in the case of ordinary “secondary legislation” to ensure that the essential distinction between emergency regulations and parliamentary legislation be properly observed. [See alsoCrisis government.]
The previously noted complications arise even where the individuals and groups in control of the executive are willing to abide by the limitations placed on their powers and do not seek to overthrow the rule of law. Where this condition does not apply, the difficulties noted are aggravated, and the observer encounters a wholesale and deliberate trespassing by those who control the executive on what would be regarded as the normal domain of the legislature. Like those earlier regimes where power was highly concentrated, modern dictatorships, whether ideologically motivated or merely ambition-driven, whether totalitarian in their policies or fairly liberal, tend to obliterate the distinction between legislation and other procedures of law making. Representative legislative institutions are either abolished, or reduced in authority, or transformed into mere instruments whose composition and deliberations are wholly managed by the wielders of executive power. In either case the intrinsic importance of legislation and the distinction between it and other rules of law are diminished.[SeeTotalitarianism.]
Structure of legislatures
The foregoing observations have shown that the body regarded specifically as the legislature bases its claim to higher legitimation on its being more fully representative than other public authorities. The actual mode of determining that body’s com-position, as well as the relative weight of the circles and interests thought worthy of representation, vary in accordance with the views prevailing at the time in the given society generally and among those who occupy the centers of power especially. A common characteristic of all properly differentiated legislatures is that they are collective bodies —an elementary device which makes fuller representativeness more likely and an excessive concentration of power less likely than would be possible in the case of a one-man legislature. Appointment, whether for a given period, for life, or even to a hereditary seat, was often practiced as a suitable mode of composing the legislature along with or instead of election, and this mode is still found in the mid-twentieth century in a number of “upper chambers,” e.g., in Afghanistan, Canada, Ethiopia, Jordan, Luxembourg, the United Kingdom, and the Republic of South Africa.
Historically, the division of legislatures into two houses or chambers is a survival from the strongly estate-conscious medieval society, when deliberative bodies with partly legislative functions were organized by estates or groups of kindred estates. With the weakening of the estate as the prime integrating group and the strengthening of the direct links between the individual and the State, the “lower” chamber, based on some system of fairly wide and, most recently, near-universal adult suffrage, became the principal vehicle of mass representation, while the “upper” chamber was used to add an element of conservatism, moderation, or stability to the legislature. Conditions of eligibility and of voting were formulated more strictly in upper chamber elections, indirect elections were resorted to in the hope that they would screen out radical elements and make for a higher level of expertness, and appointment was often practiced. All these methods could ensure weighted representation to social groups and interests favored by the regime. In federations, the device of the upper house is generally used to secure special representation of the federated entities, sometimes on the basis of equality irrespective of population numbers, thus affording the smaller autonomous units additional protection against encroachment by the larger ones. With the continuous growth of the idea that election by a larger proportion of the population furnishes the elected body a fuller measure of legitimate authority, the political importance and the formal attributes of upper houses gradually declined, except in some federal unions where they are regarded as the guardians of the federal principle. Several countries have dispensed with upper houses altogether, and the tendency seems to be spreading. In 1963, the list of countries with unicameral legislatures embraced a number of Latin American states, all unitary states with communist regimes, most of the new states in Africa and Asia, and Cyprus, Denmark, Finland, Greece, Israel, Lebanon, New Zealand, and Norway.
The shift from legislation
Legislation has constituted the principal business of parliamentary bodies almost from the beginning, a circumstance which so impressed political philosophers of the seventeenth and eighteenth centuries, especially Locke and Montesquieu, that they saw the creation of a specialized representative agency as principal participant in the legislative process to be a prominent characteristic of a well-ordered State. With modifications, this conception, an intrinsic part of the separation-of-powers doctrine, became the predominant practice, and representative parliaments became associated in the popular mind with the legislative power as such. In fact, however, this identity is by no means complete. In this article, some of the reasons have been set out which made parliaments lose much of their decisive role in the legislative process. In addition, parliaments in a number of countries occasionally share the legislative function with binding or advisory plebiscitary procedures (Australia, Austria, Denmark, France, Germany during the Weimar Republic, Italy, New Zealand, Norway, Switzerland, and—quite often—member states in federations) or with heads of State who may grant or withhold consent to a pending bill (United States, most other presidential republics, and constitutional monarchies of the nonparliamentary type). Nor can the representative character of parliaments always stand scrutiny. The not-quite-representative character of many an upper house has already been commented upon. Elections in which only part of the adult population was given the franchise and individual votes were given unequal weight were quite common until 1918. Since then, both practices have become less frequent, except in the form of assigning larger representation to rural than to urban constituencies—a practice still widespread. [SeeApportionment.]
A newer problem is posed by parliamentary bodies in countries with communist, “popular-democratic,” “guided-democratic,” cawdi/Jo-type, and fascist regimes. There, parliaments are encountered which, though elected on an extremely broad suffrage basis and sometimes with an unusually large participation of voters, have their election process so encumbered with formal and factual restrictions on free discussion of issues and free choice of candidates, in an atmosphere so dominated by governmental and reigning-party pressure, that their representative character is doubtful in the extreme. The weaker a parliament’s claim to be widely representative, the less foundation there is for its claim to have a preponderant part in legislation.
But even aside from these particular weaknesses, the significance of parliaments as legislative agencies has generally decreased. The connection between this development, the complexities involved in modern law making, and the greater unity of outlook between modern legislatures and executives, has been set out earlier. Even in the United States, where legislative activity proper is carried out more fully and more jealously by Congress and by the state legislatures than in most other countries, the national or state administrations initiate an ever-increasing portion of the more important bills. The American legislature is still in a position to deny clearance to a legislative measure desired by the administration, but less and less frequent are the cases in which, overriding a president’s or a governor’s veto, a legislature is able to enact a measure to which the administration objects. [SeePresidential government.] In other countries, to the extent to which parliaments are the expression of the voters’ choice rather than of the governing group’s pressure, legislation conforms to an even greater extent to the executive’s desires. The executive’s subordination to parliament is expressed mainly in the former’s composition, so constituted as to ensure that the latter will confidently accept its guidance. Where parliamentary regimes are concerned, it is also expressed in formal votes denoting continuance or discontinuance of this confidence. But as long as a government enjoys a parliament’s confidence, executive guidance of legislative business is accepted as a matter of course. [SeeParliamentary Government.]
Nonetheless, parliaments, other than single-party ones, continue to exercise considerable influence on the specific contents of legislation. Bills introduced on the initiative of the government quite often undergo radical change as a result of discussion on the floor and in the committees of the legislature, and of public debate. Furthermore, bills are often introduced by the government or on its behalf as a result of opinions expressed in the legislature and of similar bills proposed by the opposition.
In matters of budgetary and finance legislation, special procedures have grown to hinder parliaments from seeking to please the voters by simultaneously advocating increased expenditures and decreased taxes—a double treatment necessary at times but dangerous when used indiscriminately. In several countries such devices were adopted as limiting parliament’s opportunity to propose expenditures over and above those suggested by the government, making such increases conditional upon simultaneous provision for added revenues, or providing for a lengthened legislative procedure (such as an authorization and an appropriation act in the United States; the financial resolution in Great Britain). Long-term financial provisions such as the British Consolidated Fund, multiyear plans involving financing and enacted in advance, and authorization of economic activities controlled by the government and carried on through the intermediary of public corporations have further reduced the significance of the annual budgets handled by parliaments as part of their legislative routine. [SeeBudgeting.]
Not only has the part of parliaments in the over-all legislative picture become smaller. Legislation has also become a less important, though not necessarily less time-consuming, part of parliamentary business. Its place has been taken largely by two other functions: the day-to-day control of governmental operation and the formalized, highly resonant expression of the grievances and aspirations of groups within the population. Speeches on the floor and in committee, interventions by members with appropriate ministers and their officials, questions or “interpellations,” “points of order” and motions of different kinds ascending in intensity to the (British) motion of censure and the (continental European) motion of nonconfidence serve these various purposes. In the United States, some of these forms are not used, but their place is taken no less effectively by the formalized procedure of open hearings in legislative committees and the informal contact which members of the legislatures maintain with the press and other mass media so as to mobilize the latter in the service of causes to be supported or fought. Legislatures and their members thus become highly sensitive parts of the machinery of government, attuned to currents of popular opinion, capable of broadcasting their own moods to the population, and constantly pressing the resulting views on the administration.
If modern parliaments are still regarded largely as the legislative agencies par excellence and legislation is still represented as their principal business, this is, to some extent, an echo from the past, perhaps a reminder of a weapon parliaments hold in reserve to be used against the executive in some future contingency but hardly a fair description of the actual state of affairs. Those “legislatures” which have been deprived of the dynamic role of daily controllers and gadflies of the administration because of the utter subservience of their membership to the executive, and which have been reduced largely to legislative activity—again in an atmosphere of such subservience—lead but a shadowy existence. For obvious reasons, opposition groups and members in parliaments—wherever genuine opposition is allowed—are much freer from executive dominance than are groups and members that support the government of the day, both in their legislative and in their gadfly activities, and they appear by and large as the more dynamic part of the legislature. Only where party discipline is lax do members of the group pledged to support the government make themselves strongly felt in the conduct of parliamentary affairs. This is the case to a very marked extent in the United States and to some extent in Italy; such was the case in France during the Third and Fourth republics, and with respect to a few individualistic members of other parliaments (e.g., in Britain, Winston Churchill and Leopold Amery among the Conservatives; Stafford Cripps and Aneurin Bevan among Labour party members). [SeeParties, political.]
Typical of modern legislation is the elaborate procedure intended to avoid drafting errors and hasty decisions. Both the guiding ideas and the actual text of the original proposal may be suggested by an individual member of the legislature, by a group of members, by a partisan body, by an outside group primarily interested in the issue, by a government agency, or by experts to whom the task has been entrusted by one of the foregoing. Where formal introduction of bills by the government or a government minister is allowed, the role of the individual legislator in initiating legislation has been on the decrease, and so have his chances to have his bills considered on their merits or adopted. Legislative counsel, legislative reference services, and experts attached to specific legislative committees are growing in importance as media for assembling information, drafting documents, or otherwise assisting members and committees of the legislature. With the formal introduction of a text for consideration as a proposed piece of legislation, the text becomes a bill In most legislatures, either members or the government (in the United States only members) are authorized to introduce bills.
Though subject to serious modification in detail, the legislative process commonly involves four stages. Upon formal introduction in parliament, the bill is either automatically turned over for consideration to an appropriate committee or first briefly discussed in plenary session (first reading) with a view to dismissal or to retention for further consideration. In Britain and some countries that closely follow British procedure, the next stage (second reading) takes the form of a debate in plenary session, which, in turn, is followed by consideration in committee (usually a smaller body chosen ad hoc or generally entrusted with matters of that kind, but in Britain often the “Committee of the Whole House”—i.e., the entire membership of the chamber proceeding in a less formal manner). In most other countries, consideration in a smaller committee comes first; and the second reading in the plenary session, with opportunity for detailed discussion and vote on individual sections of the bill, takes place only after it has been “reported out” by the committee or (in the United States) after the committee has been “discharged” from further consideration of it. (The discharge procedure is a remedy against undue dilatoriness on the part of the committee or the committee chairman.) Representatives of the government are usually heard by the committee, and in most countries other interested parties may also be heard (in the United States predominantly in open hearings, in other countries mainly behind closed doors). During the committee stage, especially when proceedings are held behind closed doors and do not involve the prestige of individual members, of parties, and of the government in the same measure as in public session, considerable changes are often introduced into the original text in response both to argument and to pressure. The last stage (third reading) usually involves a brief debate and, in most countries, concludes with a vote on the bill as a whole, although under British procedure the debate is more extensive and opportunity is given to decide on various amendments that have arisen out of committee proceedings.
Ordinarily, intervals of several days, weeks, or months separate these stages. Indeed, such intervals are regarded as desirable in order to permit thorough deliberation and to enable public reaction to make itself felt. But in emergencies legislatures resort to a “suspension of the rules,” limiting debate, shortening the accepted intervals between stages, dispensing with committee consideration, and even passing the entire measure in the course of a single day.
Other decisions taken by legislatures are not to be confused with legislation proper. These include elections; votes of confidence, nonconfidence, and censure; votes of impeachment; expressions of approval or disapproval of administrative measures that require such action; procedural decisions of various kinds (including the determination of rules of procedure, or standing orders, under which the legislature operates); and especially declaratory resolutions of different kinds which may be morally and politically significant but have no binding force in strict law. In the United States Congress, it is important to distinguish between “joint resolutions,” which are tantamount in their effect to statutes, and “concurrent resolutions,” which in themselves have no legal effects. Where legislative agencies also have constitution-making and constitution-amending functions, procedures governing them should be distinguished from those involved in “ordinary” legislation.
Voting procedures differ greatly among the legislatures of the world and, depending upon circumstances, even in the same legislature. The vote may be taken by an informal estimate of the strength of the voiced (viva voce) approval and disapproval, by a “show of hands” or a “rising vote” estimated or actually counted, or by more formal counting (“division” in the British Parliament), by roll-call votes registered by name, or even by secret ballot. A simple majority of those voting, with abstentions not taken into account, is usually decisive, and most legislatures require either a low proportion of members to be present at deliberations or votes (quorum) or no quorum at all. The British House of Commons requires a quorum of only 40 members (out of 630 in 1963); the quorum requirements of both houses of the United States Congress of a majority of all members are among the strictest. There are, however, legislative and other decisions which require, to become effective, an absolute or an even higher majority of all members voting, of members present, or of the total membership.
Participation of other bodies in the formal legislative process is secondary in the modern State. Formal consultation of economic councils of various kinds takes place in some countries. Under some newer constitutions, an appropriate judicial or semijudicial body may be requested for its opinion if the constitutionality of the measure is doubtful (in Iran the Council of Ulemas, i.e., religious dignitaries, passes on the religious orthodoxy of the measure), and, if necessary, the bill is returned to the legislature. More widespread is the opportunity given to the head of state to withhold his consent to the bill, thereby either preventing its passage into law (absolute veto) or requiring its consideration anew by the legislature (suspensive veto).
Except in very special circumstances, publicity is a mark of modern legislative procedure. This publicity serves to enable public opinion and that of interested groups to make their weight felt before the final decision is taken, as well as to rally the public around the decision’s results. The bill, after having been given the assent of all those whose participation is required, is certified, proclaimed (promulgated), and published, thus becoming a law, a statute.
Interpretation and codification of statutes
In most cases, a statute is restricted to a single subject matter, though this may be quite involved, present many aspects, and require subdivision into several sections or articles. As a rule, the adoption of a statute does not invalidate previous statutes, save insofar as they are expressly invalidated. But where a provision of an earlier statute is inconsistent with the provision of a later statute, the later rule should be applied (lex posterior derogat priori), unless the earlier rule is a special and the later a general one, in which case the special rule will prevail (lex specialis derogat generali). These and other principles of statutory interpretation are generally left to the courts, which follow certain traditional criteria and their own precedents; where statutes themselves contain rules of interpretation, these are to be followed, of course, but in no case are executive agencies to prescribe rules for the interpretation of statutes in states where the rule of law or the principe de la légalité prevails. [SeeJudicial process.]
Where partial modification of an existing statute is desired, this is done mainly by an amending statute. When this has been done a number of times, or when provisions relating to a given subject matter are dispersed over several statutes (and perhaps over statutes, secondary legislation, and various forms of customary law), a patchwork pattern ensues which makes it difficult to grasp the exact requirements of the law. In the interest of clarification, consolidated statutes may then be adopted by the legislature or an up-to-date revision of the statutory material, to be done by experts, authorized by it. When the consolidation of the legal material is done in a particularly systematic and comprehensive manner and purports to regulate fully a very broad sector of social relations, the process is known as codification and the resulting product as a code. Codification may contain restatement of pre-existing statutory, customary, and judge-made law in diverse proportions, but also newly formulated rules that differ materially from the law previously in force. Several Oriental, Latin American, and European countries have adopted, virtually unchanged, codes that were previously enacted elsewhere, the most frequent models being the French, German, Italian, and Swiss codes. Such wholesale reception of foreign codes represents a variant of the well-known phenomenon of the reception of foreign law in general.
In its continental European meaning, a code, upon coming into force, is meant to displace all pre-existing law relating to the subject, thus rendering unnecessary inquiry into older sources and precedents, and simplifying access to the law. But in the United States pre-existing law, especially rules derived from the common law and from equity, continue to be regarded as in force, unless specifically conflicting with or expressly repealed by the code. In time, even consolidated and revised statutes as well as codes cease to be up to date: social changes and political aspirations result in partial amendments of the enacted material, and so do technical deficiencies in the original text as revealed in the course of its application. Furthermore, the best-planned and most detailed code or comprehensive statute is overgrown in time by judicial interpretation, even if—as in the case of countries outside of the common law sphere—its interpretation in the light of precede material is discouraged.
The above difference between English-speaking countries and others in regard to codification is related to the different attitudes which legal practitioners and scholars traditionally assume toward the relative places of enacted law and of customary law authoritatively formulated by a succession of judicial decisions. In civil law countries, legal thought considers law primarily the product of general enactments made by the legislators; custom is but one of the factors which the legislators may take into account; judicial decisions, however important in applying the law to concrete situations, are of merely interstitial significance in classifying, specifying, and sometimes stretching (by analogy, for instance) the general principles of the enactment to cover unforeseen combinations of circumstances—all of this under the guise of interpretation. In common law countries, law is primarily thought of as the body of rules evolved from a succession of judicial decisions on the basis of real or alleged custom, whereas legislation comes in interstitially, to fill the lacunae of the judge-made law or to adjust it to changing demands of society. The formal supremacy of the legislative rule is but reluctantly recognized in the English-speaking world, and wherever possible its significance is reduced by the tendency to interpret the enacted rule in the light of the common law. The difference is further accentuated by the tendency in civil law countries to interpret the enacted rule broadly, so as to bring under its sway as many concrete situations as possible, whereas common law countries tend to interpret the enacted rule narrowly and to continue applying judge-made law outside that narrow area. Basically, the common law attitude reflects the belief that the legislator is inherently a political agent interested in furthering his interests at the expense of true law, somehow related to “natural” law, of which the judge is the guardian, whereas civil law thinking has resigned itself to the acceptance of the legislator as the foremost exponent of the law. [SeeLegal systems.]
Legislation and natural law
The foregoing section brings us back to the question of the relation of legislation, as the outstanding instance of a positive, i.e., State-imposed, law, to norms of human conduct which claim validity independently of State action. Where the role of legislator is entrusted to an elected assembly on a broad basis or to direct popular vote, the element of consensus enters the picture, and it is society as a whole that is assumed to impose the law on individual members and groups; still, there is a deliberate act of imposing a rule of conduct which previously could claim no validity. The question arises, in what relation the legislated rule, and positive law generally, stands to natural law or morality, that vague but intensely felt body of principles which in human consciousness divides the just from the unjust. In this confrontation, positive law enjoys great advantages: its contents are far more ascertainable, its formulators are tangible and certain, its sanction is secured by an organized and generally efficient machinery—all unlike the rules of natural law, the precise contents of which are doubtful, the originators and formulators of which are diffuse in the extreme, the sanctions of which are indefinite and uncertain. [SeeJustice; Natural law.]
And yet, for all their weaknesses, natural law concepts—closely intertwined as they are with social mores, with rationalized interests and desires, with theological postulates, with individual conscience, and with the ensuing pattern of ethics accepted in society—exercise a permanent influence on positive law in general and on legislation in particular. Enacted rules of law are quite often a reflection of those natural law concepts which prevail at the time. And when positive law appears to one group or another to deviate from natural law, to be unjust, it is in the name of natural law, of justice, that changes in positive law are advocated and brought about more often than in the name of any other principle. This applies to partial changes in positive law, which can be accomplished in the forms provided for by the positive law itself, i.e., through the ordinary channels of new or amending legislation, of reglementation, of judicial interpretation, and of constitutional amendments. But it applies no less to such wholesale changes of the existing positive legal structure as are accomplished in disregard, even in violation, of these channels, i.e., to revolutions. Most revolutions which have a widely acknowledged ideological basis claim to be methods of adjusting the positive law to the true natural law as seen by the revolutionaries.
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If legislation may be defined as making new rules of general applicability for the future, it should be evident that most, if not all, agencies of government legislate. The judge was probably the first public official to “discover” law, while the legislature, as a self-conscious lawmaking body, is a relatively late creation. The pressures of change induced by the industrial, technological, and scientific revolutions have made even the legislature inadequate, requiring it to lay down broad policy directives and delegate to administrative agencies the power to make actual rules.
If the legislature has no monopoly on legislation, it does at least have a distinct character of its own. Generally it is composed of one or two relatively large bodies of people who, technically at least, are peers. Their authority customarily is derived from some scheme of representation, most often the population living in a delimited geographical area, although there may be some other basis, such as class, or function performed in the system. Because all members are on the same footing and issues are decided by a majority vote, members tend to be or to become generalists, whatever their previous vocation. Except in some upper houses based on class, members are politicians forced to face the recurrent hazards of the ballot box. These facts are important: they shape the institutional life of the legislature and the attitudes of its members, just as the bureaucracy and the judiciary are shaped institutionally by their own methods of recruitment and advancement and by the materials and methods of decision making on which they must rely.
The structure of a legislature obviously affects its decision making, although structure is not necessarily the most important influence. There are essentially two models of legislative structure, the parliamentary and the congressional–presidential (referred to hereafter as the “congressional”).
The parliamentary model
The crucial element in the parliamentary model is that the executive is selected by the legislature from among its own members. Presumably, then, the executive is responsible to the legislature. This responsibility may be enforced if the executive is allowed to stand only so long as it has the support of the legislature. The executive may in turn have the power to force the dissolution of the house to which it is responsible, thus requiring a new election. It should be obvious that this kind of responsibility is difficult to maintain toward more than one house. In England, where cabinet government emerged, the powers of the House of Lords withered away or were taken away by the House of Commons, as logically they should have been, until convention would not allow a lord to be prime minister (though he might still sit in the cabinet). There are systems, nevertheless, in which some responsibility falls to a second house, as it did in the French Third Republic and still does in some other systems, with predictable difficulties.
Most national legislatures in continental Europe are relatively recent creations or fairly complete overhauls of feudal institutions. In France, for instance, the States–General lay dormant for two centuries during the reigns of divine right monarchs; the National Assembly was a creature of revolution. The only legislature to survive to the present, adapting its procedures and distribution of powers without changing ancient forms, is the English Parliament. When William of Normandy conquered England in 1066, he imposed Norman feudal institutions, including the Curia Regis, a court of nobles who attended and advised him, and the Curia Regis Magnae, a great council that met usually three times a year to give counsel and pre–sent petitions. The permanent bureaucracy emerged from the former, while the seeds of Parliament took root in the latter. Knights first came to the Great Council in 1213, and virtually all elements were represented, after a fashion, in the Model Parliament of Edward i in 1295. The knights, burgesses, and lesser clergy, who represented the communities, met separately from the barons— who were summoned by name—and came in time to be the House of Commons.
It would be pleasant to relate that the members of Commons set about asserting themselves and followed a rational sequence of development to a system of responsible cabinet government—pleasant but not true. Actually, Commons frequently gave away its own tools, and the cabinet developed as a leadership group through necessity, because George I neglected his job. What has emerged nevertheless is a prototype of parliamentary government. The crown reigns but does not rule. The House of Lords sits and talks without power to bother anybody very much. In Commons the government is supreme, initiating legislation, controlling debate, and determining outcomes with the support of its disciplined majority, even when its margin of numerical superiority is quite thin. The notion that the House of Commons will overthrow a government that has lost its confidence is now a fiction. So, apparently, is the description of the prime minister as “first among equals”; a rather weak prime minister, Harold Macmillan, demonstrated that he could shuffle the membership of his cabinet without interference. It is also true, of course, that party leadership in England must consider the sentiments of its parliamentary members and of the country at large, as it probably must in any system and certainly must in a democratic one.
The government nevertheless can be responsible to the electorate because it is in fact in power: controlling the majority party. Its dominance is safeguarded by procedures that deny to the individual member an opportunity to build a personal following that might support him against his party’s leadership, and the electorate demonstrates its understanding of the system by retiring the occasional rebel who tries. [See Parliamentary Government.]
Needless to say, there may be no end of variations on the parliamentary model. In Norway and the Netherlands and in the French Fifth Republic, ministers are prohibited from being members of parliament. They may have been members, they may run again when they are not ministers, but so long as they are in the government, they may be physically in the chamber but may not vote.
Structural differences may have less profound impact, however, than those induced by other variables in the system. Among the most important of these is the character of the party system. When more than two or three parties elect members to parliament and none has a majority, the coalition cabinet that, perforce, must be formed is likely to lack the stability and poise of a leadership confident of support. In the French Third Republic, where multiple parties could play musical chairs with cabinet seats without having to face a general election, governments fell with boring regularity. The fact that successive cabinets had little actual change of personnel was a consolation to the politicians but did little to increase the prestige of the system. In Germany under the Weimar Republic more than thirty parties reduced the regime to such impotence that the minority National Socialist party easily took power.
The problems faced by a multiparty parliament are enormously enlarged when one or more parties are antidemocratic in ideology and, thus, are determined to bring an end to the democratic game. Hemmed in at both ends of the political spectrum, the democratic parties are forced to mute legitimate differences if the system itself is to stand. Parliamentary government faced this problem in the French Third Republic, as it has in Italy since World War II[see Parties, Political,article on Party Systems].
The congressional model
The daily operations of the U.S. Congress show a strong influence of British forms and procedure. For example, a speaker presides over the House of Representatives. The constitutional stipulation that revenue bills must originate in the lower house reflects hard British experience, as do the privileges and immunities which members take for granted. But such resemblances are superficial; the constitution fashioned a structure of power unlike the British one, and the forces of American life have strengthened and extended the differences. For example, the American speaker is as partisan as the British speaker is neutral.
The makers of the American constitution followed Locke and Montesquieu in attributing a separation of powers to the British system. More important, their colonial experience encompassed a more or less representative lower house pitted against the executive—the king’s representative. Thus, they wrote into the constitution a prohibition against any person’s serving simultaneously in both executive and legislative branches. This did not quite accomplish a separation of powers—the constitution provided for a certain commingling of powers, and in practice there has been even more.
Institutions, however, were separated with clean finality. When the Founding Fathers then gave the president and members of both houses fixed but different terms of office, they established conditions making continuous bargaining and compromise an imperative of the system.
British members of Parliament look to the bureaucracy for information, because its ministers are their own men; the same is not true for members of Congress. Congress recognized early that if it were to maintain its independence of, and a semblance of equality with, the executive, it must develop its own research tools. The answer was a system of standing committees, each, in time, coming to have a fairly clear subject-matter jurisdiction, which made it a little legislature within its own sphere of competence. Woodrow Wilson’s observation at the end of the nineteenth century that “congressional government is committee government” is still true and seems likely to remain so, barring really fundamental changes in Congressional procedures. Each bill that becomes law must pass the committee test in each house; it may be the subject of hearings, debate, and amendment, or it may die without consideration. If it goes to the floor of either house, it will be promoted there by committee leaders, who also sit in conference with their counterparts of the other body of Congress, to compromise differences written into the bill by the respective houses. Committee chairmen, who gain their eminence through seniority on their committees and retain it so long as they are members, are thus powerful men indeed. Party leaders negotiate with them in a relationship that has more than a superficial resemblance to that of a medieval king and his feudal barons.
Power is further fragmented in Congress by the separation of the legislative and appropriations processes. The expenditure of public funds must first be authorized by legislation considered by the appropriate subject-matter committee in each house. No money can be spent, however, until there has been an appropriation, which is considered not by the legislative committees but by the two appropriations committees. Inasmuch as they may reduce the amount requested or deny funds altogether, they (and their subcommittees) exercise power and enjoy prestige not rivaled by many of the legislative committees.
Power vested in committee chairmen might still be harnessed to party purposes (the chairmen might sit on a party policy committee, for instance, and advance its program in their respective committees) if it were not for the localism of American politics. The constitution requires members of Congress to be residents of the states they represent, and in nearly all cases representatives reside in their districts. The major parties are not truly national; they are federations of state and local parties, held together by the exigencies of presidential politics, unable to help or hurt members of Congress very much. The individual member’s constituency therefore is usually paramount; it can end his political life or furnish him a secure base independent of national party leadership. His policy preferences therefore tend to be an amalgam of interests; he may vote with a majority of his party on most issues because there is no conflict but reserve the right to proceed independently when he chooses. Thus, there are very few straight party–line votes in either house, and the president’s floor leaders must learn to put together majorities however they can. Interest groups are in the thick of every fight, knowing full well that each contest is in a sense a new one[see Presidential Government].
Problems for research
The relationship of the legislature and the executive is crucial in any political system; yet analysis of it has not gone very deep. In England the House of Commons may harass its own minister through the question hour, but how much control can a minister who spends so much time on the floor exercise over his department? Indeed, how much does the legislature affect the performance of the bureaucracy in any country? In the republics of France the bureaucrats paid little heed to parliamentary charades. In the United States the oversight of administration is supposed to be a primary function of committees, but not much is known about the complex patterns of relationships that actually exist. Some committees apparently exercise no supervision; others participate as virtual partners in the most important decisions. Indeed, there probably is no more richly varied or complicated political relationship anywhere than that between the president and his establishment, on the one hand, and Congress, on the other. The initiative in legislation has passed over to the executive, but members of Congress share in it. Administration, the responsibility of the executive, is subjected to a variety of Congressional pressures, with results that defy measurement.
Answers to questions concerning legislative–executive relations had to wait for research interest to turn in that direction. In the early twentieth century students of the legislature were likely to devote themselves to formal descriptions of the institution and its procedures or to legal analyses of its powers and its relations with other organs of government. In the United States such writing was often value–laden; scholars could draw up “model” legislatures because they knew what a good legislature was like and what it should do. This willingness to prescribe, which extended to other public institutions as well, was a product of an earlier generation more confident of the efficacy of reform through structural change. And this trend has not by any means disappeared from American academic scholarship.
Legislative decision making
Beginning roughly with the 1930s, however, attention turned more and more to the political forces that shape legislative decisions—pressure groups, parties, constituencies; this research trend was to manifest itself somewhat later in other countries, particularly England. More recently, legislative research has begun to pry into the internal structure and group life of the legislative body and its subsystems.
A popular tool for this more behavioralistic approach was the case study of some slice of legislative life—the passage of a bill, say, or the activity of an interest group. The case study often gave fresh insights and, at its best, hypotheses worth more rigorous investigation. At its worst, it served as a substitute for analysis, piling up sterile recitals of what happened, which had no cumulative value. Other scholars turned to the public act of decision, the recorded vote, which had the virtue of being a quantifiable unit. With various indices (e.g., liberalism—conservatism, party cohesion, party loyalty) attempts were made to measure the relative weight of contending influences on Congressional decisions. These efforts increased in sophistication with the use of scaling, which tested whether a single attitudinal dimension (e.g., liberalism–conservatism) was in fact being tested, and cluster–bloc analysis, which made possible comparison of the votes of every member of the body on a set of issues with those of every other member.
Needless to say, a fatal flaw of the roll call vote is that it does not reveal vast portions of the legislative process. What finally happens on the floor may be simply the ratification of treaties negotiated elsewhere through bitter disputes. Students of this process face an array of fascinating problems— the relations of the leadership with the rank and file; the internal life of subsystems, such as committees, state delegations, friendship groups, and “classes” of legislators who enter the legislature at the same time; the influence of rules and procedures on legislative outcomes; the legislator’s perceptions of himself, other political actors, and the process; the relations of legislators with outsiders in the bureaucracy, press, interest groups, constituency; and many others. A host of impressions are easy to come by; what is necessary is that some patterns of behavior, individual and group, be identified and some hypotheses as to their relationships be formulated.
Whether they tried to answer such questions or merely sought to get the “feel” of the legislature, political scientists by the mid–1950s were going in person to the legislative chambers and offices. The days were past when a gifted scholar like Woodrow Wilson could write a classic on the American Congress from nearby Baltimore without ever having laid eyes on either house in session. In the United States especially, internships liberally financed by foundations provided for participant observation of national and state legislatures. They led in turn to the actual employment of academic scholars in legislative staff jobs. Interviewing became a popular technique. Usually this was unstructured and relatively informal, but, increasingly, highly structured schedules of questions yielding quantifiable results were used with success.
Questions on process shifted their focus to include analysis of the legislative product as well. Were legislative outcomes actually affected differentially by changes in rules and procedures? Relating process to product suggested a different question : Does the legislature go about settling different categories of policy problems in systematically different ways?
As legislative research increased in systematic rigor and sophistication, the troubling question remained: Does it add up to anything? The testing of isolated hypotheses and the posing of problems for further research lead nowhere unless findings can be related to some tenable theory, even one of the “middle range” (to use Robert K. Merton’s term). Theoretical endeavors were obstructed, however, by the difficulties posed by the data. On the one hand, roll call votes were so numerous that even a modest study of one Congress could be costly in time and money. To go back even a few congresses, sort out the votes by parties and other significant categories, and relate them to an evaluation of the significance of the votes was quite beyond the resources of research largely performed by individuals. Moreover, except for recorded votes there were few reliable records. Basic information, such as biographical and political data about members and analyses of the meaning of issues, was lacking altogether or hard to uncover. Tentative generalizations therefore lacked the crucial historical dimension, which could be supplied only by costly cooperative efforts to discover and store essential data and provide for easy retrieval.
Even if those tasks were accomplished and a reasonably useful theoretical model of a legislature constructed, there would still be no certainty that it had analytical value beyond the legislatures in a single system. A legislature is a part of a political system that in turn is a component of a larger social system. No model that ignored these relationships would make much sense. Obviously it matters what tasks the system assigns to the legislature. Again, the history of a people is important; it determines the level of their political sophistication and the kinds of divisions among the people the political process must bridge. Revolutions, civil wars, military defeats, are hard to assimilate. If the United States can see no end, a century later, to the passions stirred by its one civil war, how much of the difficulties of France should be attributed not to its governmental structure but to its tortured past?
If it should prove feasible and profitable to study political systems comparatively, can the same be said for political institutions like legislatures? Have developments in different countries been similar enough to suggest that there is an endemic need in a modern political system for such institutions? Do they perform similar enough functions for the system, do they affect the behavior of their members in ways enough alike, to make a comparative study of legislatures worthwhile? The same questions might be asked about parties, interest groups, bureaucracies, and so on; the issue is fundamental. Whatever the answer, research on legislatures has been almost wholly confined to single systems, with only some tentative comparisons of local legislatures within a system.
The role of modern legislatures
How effective is the modern legislature? This question has been asked earnestly and repeatedly in the twentieth century. The answer usually is that it is not very effective, that it has lost much ground to the executive. In the United States the criticism has been continuous and bitter. Ironically, the British Parliament, which is dominated by the executive and exercises little independent judgment compared to Congress, usually is discussed in deferential terms even by its critics. In any case, the common judgment is that the legislature was better suited to an earlier, more leisurely day and that its appropriate task now is to react to executive initiative.
The question can be answered analytically only by relating the legislature to the political system of which it is a part. What functions does the legislature perform for the system—that is, what does it do that contributes to the adjustment or adaptation of the system, that is necessary to the maintenance of the system? It is self–evident that a legislature passes laws, but what is there about the enactment of legislation that is functional to the system? When the question of function is raised, it becomes apparent that to be a mere debating society is not contemptible if the debate is necessary to political education or stability. Performing routine chores for constituents is not degrading if the chores serve as a vital link between citizens and government. Legislation that does not accomplish its avowed purpose is not necessarily a sign of impotence; it may provide a symbolic victory for interests not strong enough to prevail. The lonely champion of a hopeless cause has not cried out in vain if he is the champion of the hopeless. Some of the legislative functions may be manifest, in the sense that their objective consequences for the system are intended and identified; some are latent, having unintended and unrecognized consequences. Whether manifest or latent, these functions contribute to the stability and maintenance of the system. It may be that there are common functions that all legislatures perform for their respective systems. If so, it seems likely also that there are functions performed by each legislature that are the products of the unique relationship between the particular institution and the system it serves.
[See alsoAdministration, article onthe Administrative Process; Elections,article on Electoral Systems; Judicial Process; Parliamentary Government; Presidential Government; Representation,article on Representational Systems.]
Beer, Samuel H.; and Ulam, Adam B. (editors) (1958) 1962 Patterns of Government: The Major Political Systems of Europe. 2d ed. New York: Random House.
Finer, Herman (1932) 1961 The Theory and Practice of Modern Government. 4th ed. London: Methuen. Ⅲ See especially Part 4, “Legislatures,” pages 367–572.
Jennings, W. Ivor (1939) 1960 Parliament. 3d ed. Cambridge Univ. Press.
Keefe, William J.; and Ogul, Morris L. 1964 The American Legislative Process: Congress and the States.Englewood Cliffs, N.J.: Prentice–Hall.
Lidderdale, D. W. S. 1951 The Parliament of France. London: Hansard Society.
Taylor, Eric (1951) 1958 The House of Commons at Work. 3d ed. Harmondsworth, Middlesex (England): Penguin.
Wheare, Kenneth C. 1963 Legislatures. New York: Oxford Univ. Press.
Williams, Philip 1954 Politics in Post–war France: Politics and the Constitution in the Fourth Republic. London: Longmans.
Young, Roland A. 1958 The American Congress. New York: Harper.
In its most general connotation, “legislative behavior” refers to the activities of members of any representative body; in its commonest usage, however, it refers to activities of members of public representative bodies constituted by popular election.
Objectives and methods of study
The earliest relevant literature is the work of certain political philosophers prescribing various rules which they thought proper to guide legislators’ actions, generally deduced from their conceptions of the proper functions of legislative institutions. Such literature includes Edmund Burke’s familiar strictures concerning the desirability of representatives’ being “free agents” instead of ambassadors from local interests (1774), numerous principles of behavior deduced by Jeremy Bentham from his conception of political and legislative functions (1817; 1843), and John Stuart Mill’s arguments concerning the desirability of having representatives merely accept or reject proposals formulated by other agencies, or of responding to “free-forming” constituencies created by proportional-representation elections (1861).
Much current legislative behavior study is still concerned primarily with the functioning of legislative institutions, but in quite a different way. Instead of deducing norms of behavior from normative assumptions about legislatures’ functions, it tends to discover, describe, and explain actually observable patterns of behavior which presumably are relevant to those functions. A. Lawrence Lowell, in the first modern empirical study of legislative behavior (1902), examined party-line voting in the British Parliament, the U.S. Congress, and several American state legislatures and based his work on implicit assumptions about the relationship between party voting and responsible legislative functioning. Julius Turner (1952), in comparing party with constituency factors in congressional voting, was more explicit about this functional relationship, and David B. Truman (1959) not only explored the patterns of such influences in the U.S. Congress in still greater depth and precision but also sought more explicitly than previous investigators to identify and secure data concerning the legislative functions in question. A number of contemporary investigators, particularly Duncan MacRae, Jr. (1958), have explored overt and latent bases of cleavage and consensus underlying legislative voting, relating these either explicitly or implicitly to decision-making and value-allocating patterns characterizing the over-all legislative process.
The development of the “political behavior approach” influenced legislative behavior study as early and as much as it influenced any branch of political science. In the 1920s Stuart A. Rice (1928) and Herman C. Beyle (1931) had already suggested legislative roll calls as a fertile field of data to be explored by new, quantitative methods of analysis devised by them. The previously mentioned works of Turner and Truman, in fact, relied heavily on the methods of Rice and Beyle, respectively. E. Pendleton Herring’s pioneering study of group representation in Congress (1929) and the “noninstitutional,” “realistic” process studies stimulated in part by it (e.g., McKean 1938; Schatt-schneider 1935; Zeller 1937), while not precisely focused on legislators’ behavior as such, nevertheless impelled attention to it by questioning the adequacy of purely formal and legal descriptions. The principal concern of these and many later writers, however, is still essentially “institutional,” that is to say, related to questions about the structure and functions of the legislature or of the wider set of political institutions. They deal not so much with legislators’ behavior as with legislatures’ activities, with legislative decisions rather than with legislators’ choices. Their dependent variables tend to be process variables (e.g., characteristic ways of handling issues in different legislatures) or “output” variables (e.g., characteristic types of legislation produced under different circumstances). The behavioral indexes of such variables may be the aggregate voting of legislators on relevant roll calls, but the problem treated is that of relating the aggregate behavioral variable to some ecological, demographic, political, or other characteristic of the political or social system rather than explaining variations in behavior among individual legislators.
Of course, legislative decisions are definable only in terms of their component individual actions, so the behavior of individual legislators has in a sense had the theoretical status of ‘intervening variable” between social, political, and other determinants of individual behavior (as independent variables) and legislative output and functioning (as dependent variables). But preoccupation with the aggregate of individual actions, the legislative decision, long inhibited scholars even from classifying legislators’ behavior in terms of analytic concepts relevant to the explanation of individual behavior. The common practice was to make descriptive classifications in terms of those overt actions—above all the roll call vote—most directly and obviously related to the aggregate legislative decision. Even other categories of behavior which relate almost as clearly and directly to this function as do roll call votes (e.g., initiation or introduction of proposals, floor speeches, and actions in legislative committees) rarely were used to describe legislative behavior systematically.
Instead of inquiring into the antecedents of legislators’ behavior, most research proceeded rather uncritically from assumptions about the bases of behavior, which were almost never made explicit. A simple rationalistic model pictured the legislator’s activity as the outcome of individual means-ends calculations on his part. According to its simplest version, a legislator, knowing what “the public interest” is, acts in an effort to promote it. More complex versions envisage more demanding information-seeking and analytical efforts by him to discover what the “public interest” requires in specific instances and to assess the relative utility of various means of furthering it [see PUBLIC INTEREST]. The group pressure model, on the other hand, pictured the legislator acting primarily in response to specific cues or orders from external agencies—constituents, executives, pressure groups, lobbyists, political party agents, friends, relatives, and many others. These pressuring agencies might act out of selfish desire, out of reasoned conviction about the public interest, or other motives. And the legislator’s motives for responding to the “pressure” might vary from plain fear to agreement in principle with the pressuring agent. But legislators’ actions will in any case be seen as an arithmetic sum of the amounts and directions of the different pressures on them [see POLITICAL GROUP ANALYSIS]. Sometimes, particularly in normatively oriented works, these two models have been treated as the ideal and the perverse extremes of legislative behavior, with the actually observable behavior of “real” legislators in each case presumably lying somewhere between.
The inadequacy of such frameworks for the investigation of individual legislators’ behavior was implied by one of the first types of behavioral study, the tabulation of various social, economic, and political “background characteristics” of the individual legislators. This line of investigation, suggested as early as Lowell’s time (Orth 1904), was pursued particularly by Charles S. Hyneman and his students (Hyneman 1940; Hyneman & Lay 1938), who made extensive inquiries into the occupation, political career, legislative tenure, and other characteristics of legislators in a number of American states over considerable time periods. Although, as Hyneman himself explicitly pointed out, there were few hypotheses and no clear theory about the relationship between background characteristics and legislative behavior, the assumption that some relationship did exist was made quite explicit. And it seemed clear to most scholars that this assumption fitted poorly with either rationalistic or group-pressure conceptions.
At the same time, increasing sophistication in more general conceptions of political structures and functions led to increasing awareness of hitherto neglected aspects of legislative behavior. For example, the many, varied “errand-boy” activities performed by legislators in many systems, informal but structured relationships among legislators (friendship, etc.), and numerous other aspects were seen to be as important for understanding the functioning of legislatures as were roll call votes. The importance of attitudinal dimensions of legislative behavior was emphasized by studies which viewed legislators’ conceptions of themselves and their legislative jobs as the proximate indicators, if not the determinants, of their behavior (Silverman 1954).
It rapidly became accepted, therefore, that legislative behavior is social behavior in a particular institutional context, not atomistic rational calculation or mechanical reaction to mechanical impulsion or pressure. Increasingly the effort has been to conceptualize and explain legislative behavior more fully, both with respect to the amount and manner of its effect (as an independent variable) on legislative functioning and output and with respect to its relationship (as dependent variable) to other varieties or more general principles of human behavior. Recent studies, for example, have sought to relate the behavior of legislators to the group life of the society and to the role concepts of legislators as individuals (Patterson 1958) and to explain significant aspects of the observed behavior of legislators in terms of role theory (Wahlke et al. 1962), reference-group behavior (Michel 1964), or other social-psychological and psychoanalytical premises (Barber 1965).
Advances have also been made in surmounting some of the methodological limitations which characterized earlier legislative behavior research. One limitation has been the failure to encompass the universe of public representative bodies. American social scientists, who have been responsible for most of this research, have generally confined their attention to American legislatures. Of the relatively few studies dealing with behavior in non-American legislatures, a disproportionate share are the product of American scholars (e.g., Aydelotte 1963; MacRae 1963). Although studies of behavior in American state legislatures and city councils are increasingly frequent (e.g., Zisk et al. 1965), research in America, as in other countries, has tended to concentrate on the national rather than on local or intermediate levels of government. There have been some important studies of behavior in international or supranational bodies, but they are relatively few (Alker & Russett 1965).
Moreover, despite the example of comparative analysis set by Lowell’s pioneering venture, research has more often than not taken the form of case studies. There are numerous important exceptions, but, quantitatively speaking, the literature to date offers primarily studies of single legislatures rather than comparative studies, either of different legislatures or of single legislatures at different points in time. Research has often attempted to explain the historically unique features of particular events, decisions, or policy problems in a particular legislature. As a result, it is relatively difficult to establish generalizations by cumulating findings about legislative behavior even in a particular legislature, despite the qualitative richness of many available studies.
Another methodological limitation has been the tendency to utilize only the most obviously available types of data. Official documents, such as legislative journals and reports of debates, committee reports, newspaper accounts, and similar records provide a seemingly rich mine of data for a number of national legislatures, including the U.S. Congress, the British Parliament, the French National Assembly, and others, as well as for the United Nations General Assembly. Where such data have been readily available, a number of studies have been based on them. But, except for numerous roll call analyses, these studies have been more intuitive than systematic. Rarely have such data been subjected to content analysis or other objective techniques. Roll call analysis, however, has been developed with considerable methodological sophistication, so that various types of scalogram, factor, and other mathematical analyses of roll call data are by now familiar (Anderson et al. 1966).
Another frequently used type of documentary data is the legislative “blue book,” or regularly published summary of memberships, legislative assignments, and limited biographical and other related information. A number of social background and recruitment studies have been based at least in part on these (e.g., Finer et al. 1961; Hyneman 1940; Hyneman & Lay 1938; Matthews 1954; 1960).
The most important methodological development in legislative behavior research since the beginnings of roll call analysis has been the use of new sources of data and new methods of gathering them. Systematic interviewing of whole legislative memberships or samples of them is perhaps the most widely used such method (e.g., Wahlke et al. 1962; Barber 1965). But direct observation, systematic surveillance, and participant observation, frequently in combination with systematic interviewing, have also produced some interesting findings (Crane 1959; Patterson 1958). Increasingly sophisticated methods of observing, recording, and analyzing data obtained by these methods promise further fruitful results.
Perhaps the most persuasive sign of methodological maturity in the field of legislative behavior research is the increasing frequency of efforts to combine many types of data, subjected to various types of analysis, in comprehensive assaults on theoretically important problems. Miller and Stokes (1963), for example, have combined survey and other data, utilizing imaginative statistical techniques, to investigate the problem of representation. Bauer, Pool, and Dexter (1963) have explored policy formulation in a broad context, also using a variety of data and techniques. It is fair to say, therefore, that by the middle 1960s legislative behavior had become an identifiable field of research and study, part of the mainstream of empirical political and social research; that scholars in the field were contributing their share of methodological innovations as well as utilizing techniques developed in other fields; and that research was becoming productive of findings relevant to theoretical interests well beyond the historical events and personages of the particular legislatures serving as research sites.
Dimensions of legislative behavior
The most striking characteristic of current legislative behavior research is the number of dimensions of behavior it envisages. Reference was made above to the categories of activity examined in legislative research. One important new category was revealed by the theoretical recognition (or recollection) that legislatures are, after all, political institutions. As such, legislatures in general are essentially patterns of behavior, and each specific legislature is a particular institutionalized group by virtue of the specific behavioral uniformities exhibited by each legislative generation and passed on from it to the next.
The uniformities which constitute the legislative institution have their roots in the constitutional and statutory definitions of legislative functions and tasks, but they go well beyond the formally prescribed behaviors. “Folkways” or “rules of the game,” which include not only direct norms of behavior but also sanctions against violators, have been identified in a number of different representative bodies (Matthews I960; Wahlke et al. 1962; Kornberg 1964). They prescribe such behavior as respect for fellow members’ rights in the legislature and in politics; engaging in debate only when informed on a subject, and then with due restraint; standing ready to compromise rather than holding dogmatically to fixed positions; and so on. They have been shown to serve the functions of promoting cohesion and solidarity of the legislative group, channeling and restraining conflict, expediting the conduct of legislative business, etc.[see Rules OF THE Game].
These norms enter into legislative behavior as major elements of the legislators’ conceptions of the legislative role. They are the behaviors expected of individuals associated with the office or position of legislator, by legislators themselves and by their fellows. Besides “rules of the game” the legislative role includes norms concerning (1) the legitimate purpose of legislative activity (identifying social problems and inventing solutions to them, acting as broker between competing groups and interests, etc.), (2) the representational focus of the legislators’ actions (the community collectively served by the whole legislature, the local community or constituency which elected the legislator, etc.), and (3) the style of representational judgment (“independent judgment,” orders or advice from party leaders or powerful constituents, etc.). The legislature collectively gets work done because the job of legislator is perceived by all legislators in terms of such categories (even though there may be variation among members’ conceptions of them).
Moreover, legislatures tend to develop roles obviously related to legislative task performance, to which the same principles apply. The positions of formal and semiformal leaders (speaker, committee chairmen, party leaders, whips, and so on) have role behaviors associated with them. In most legislatures there are also highly informal specialized roles that play an important part in the legislative process. One of these is the role of “subject-matter specialist,” a status recognized by legislators, who tend to accept the advice or recommendations of such specialists not on the basis of their party affiliation, personal friendship, or political identification, but directly on the basis of their recognized “expertise” as knowledgeable, though nonprofessional, specialists. It has been demonstrated that such “experts” make their influence felt not just within their own party but among members of other parties as well (Wahlke et al. 1962, pp. 193–215).
Certain other relationships among legislators play a part in their legislative behavior even though they may be peripheral or irrelevant to legislative purposes and legislative roles as such. Friendship groups and cliques, for example, have been found to influence voting, debating, and other categories of behavior. Such groups may be based on affective social ties (ibid., pp. 216–235; Patterson 1959), on membership in a common state delegation (Truman 1959), or other nonlegislative social bases. These groups, which are never large (a dozen or more is unusual), tend to form within parties more than across party lines. There is an even stronger tendency for veteran legislator groups to be relatively impervious to newcomer legislators (who, as might therefore be expected, tend to form friendship groups among themselves).
Like social roles in general, legislative roles -are conceived in terms of behavior appropriate for an individual in relation to some specific “significant other.” In the case of the above-described rules of the game, the legislator’s “significant other” comprises all his fellow legislators. But the legislative system (a network somewhat wider than just the legislature itself) includes numerous other classes of “significant others” with whom legislators interact with sufficient regularity to generate other components of the legislator’s role. In most legislatures today these classes would include the chief executive and his representatives and aides, administrators, party officials (both within the legislative party leadership and in the broader party organization outside), lobbyists and other pressure-group representatives, and different categories of constituents.
One important dimension of legislative behavior, then, is the number of different categories of behavior which have analytically been found to be subsumed in legislative role concepts and manifested in legislative role behavior, and the amount and type of variation in these respects found empirically to occur between members of a given legislature and between patterns found in different legislatures.
A closely related dimension involves the synthesis of these components by individual legislators and its consequences for collective legislative action. The aggregative and individual behavior approaches intersect at this point. The aggregative approach sees it as a problem of assessing the relative significance of competing determinants of legislative decisions (e.g., parties versus pressure groups versus constituents). The individual approach sees it as a problem of determining which role cues have most salience for various legislators, which role sectors (e.g., expectations vis-a-vis executive agents, political party agents, lobbyists, etc.) will prevail where there may be role incongruity, or what cognitive and affective structure of individual attitudes will operate under what conditions. On this crucial point relatively little is known. With respect to individual legislative behavior, a beginning has been made at detecting, describing, and classifying individual role orientations in various role sectors—e.g., “trustee,” “delegate,” and “politico” orientations with respect to representational style (Wahlke et al. 1962)—and styles of conceiving and performing the legislative job in more general terms—e.g., “lawmakers,” “advertisers,” “spectators,” and “reluctants” (Barber 1965). From the aggregative viewpoint, a number of assessments have been made of the degree of influence in particular instances of party, constituents, and other factors—e.g., the many investigations of party cohesion in roll call voting, beginning with Lowell’s. There are as yet no instruments and measures for accurately determining the relative influence of such factors or the relative salience of different role concepts and their impact on behavior. Equally important is the theoretical need for more precise and comprehensive conceptualization in this area. It is, therefore, impossible to say with assurance why parties (or constituencies, or other agencies or factors) seem to affect legislative behavior enormously in one system but much less so in another, or even to determine the magnitude of such differences with any precision.
A final dimension, which has yet to receive much attention in research, is that of time—the duration of uniformities of behavior for individual legislators, as well as among groups of them, and the patterns and process of change and development over time. Secular trends in aggregate patterns have been shown to exist in many instances (Buchanan 1963; MacRae 1958), but stability in the behavior of individuals whose behavior constitutes the aggregate picture at any given moment has generally had to be assumed (Aydelotte 1963; Truman 1959). There is now some reason to believe that blocs and coalitions manifest themselves in a much smaller proportion of legislative business than has generally been believed (Riker & Niemi 1962). But the temporal mechanics of legislative behavior, whether in aggregate or individual terms, is another subject requiring considerable study.
Bases of legislative behavior
To account for variations in behavior along the dimensions described above obviously requires consideration of the mechanics and antecedents of individuals’ behavior. Interpretation of behavior patterns identified in various cases is difficult without understanding this. For example, party cohesion was long explained in terms of party discipline, in the sense of more or less coercive activities by leaders, whips, and so on. But studies by Epstein (1960) of the British Parliament, by Dahl (1950) and Truman (1959) of Congress, and by others, point to the conclusion that disciplinary activity by party organizations is much less significant in this respect than are individual legislators’ sentiments of party identification. The latter phenomenon must be comprehended within the same framework, to begin with, as the party identification of voters in general. Although it seems clear that other factors also enter in, it is by no means clear how or to what extent. Thus, there is conflicting evidence concerning whether American state legislators are more likely to cohere with their party if they are from safe or from competitive districts (Froman 1963; Sorauf 1963), and some evidence that deviation from party positions by CDU members in the West German Bundestag is traceable to the way in which the structure of interest groups in the party influences its nominations for proportional-representation, as against single-member, district seats (Rueckert & Crane 1962).
It does seem clear that legislators acquire basic elements of the legislative role conception as part of their general political socialization, and not from specific socialization into the legislative group, since all members of all legislatures so far examined on this point appear to recognize and conform to legislative expectations remarkably quickly and dependably upon entry into the legislature. It is not clear, however, whether this is because only certain types of persons, who, for reasons that are not yet known, will already have acquired the particular knowledge in question, are recruited for legislative service, or because general political socialization processes equip practically all members of a given culture with relevant norms that remain latent until called rapidly to consciousness by recruitment into the legislature. Socialization and recruitment studies to date offer little more than descriptive data about the occupational and social origins of legislators and their prelegislative political experience.[see POLITICAL RECRUITMENT AND CAREERS; SOCIALIZATION,article on POLITICAL SOCIALIZATION.]
The factors offered to account for variations in behavior fall into several identifiable classes, despite the paucity of theory and hypotheses about the exact linkages between the variables and the behavior to be explained.
Ecological and demographic characteristics of salient political units or environments of the legislator have long been presumed to affect his behavior. Reference has already been made to party competition in legislative districts as a possible influence on party identification and cohesion. The socioeconomic character of such units has also been considered an important factor of this kind. In American legislative research it has usually been assumed that the urban-rural character of the unit is the important characteristic in this respect, whereas in other systems the presumption has been that it is differences in social class (workers, businessmen, etc.) which are important.[see PARTIES, POLITICAL,article on PARTY UNITS.]
In neither case has it ever been made clear just how these variables are linked to legislative behavior. Social background and recruitment studies of the characteristics of legislators themselves sometimes imply that legislators individually tend to embody the ecological characteristics described. On the other hand, there is considerable evidence that, at least in American legislative bodies, legislators will in various ways reflect ecological and demographic characteristics of their districts, whatever their own individual backgrounds (Crane 1959). In any case, there is very little evidence for a simple deterministic view of the connection between individual socioeconomic background and individual legislative behavior.
From findings like those concerning the relationship between partisanship and party competition, it may well be inferred that structural and situational political variables have a great deal to do with variations of behavior among legislators. The finding in most American legislatures that constituents and constituency interests seem to have primary salience for most legislators similarly points to the importance of such factors. But there is no accepted theory or model of legislative behavior describing the mechanism by which such variables affect the individual legislators. And there is certainly no accepted explanation for the gross difference in such respects between legislatures.
Despite the fears of some early critics of behavioral studies of legislatures, it does seem that the unique personality and character of the individual legislator must be taken into account. An early, never replicated study in one American state (McConaughy 1950), for example, strongly suggested the psychological normality or well-adjustedness of legislators as compared with a matched sample of laymen. Barber (1965) has identified some differences of a psychological order among legislators. And Froman (1963) has shown that the unique “individuality” of Congressmen—elements of personality, outlook, style, etc., as well as views on issues and ideological orientations (if any)—leaves detectable traces in their legislative behavior.
The tasks of future legislative behavior research, then, include the elaboration of theories and concepts which will encompass the institution-forming uniformities of behavior within legislatures, the corollary differences and similarities between legislatures in these respects, and the differences in behavior among members within a legislature. Social-psychological frameworks such as role and reference-group theory appear to offer the most promise as guides to these tasks. But it seems clear from work to date that such guides will not by themselves provide answers to the important questions subsumed under the organizing questions—Why do legislators behave as they do, and what difference does it make in the legislative process?
John C. Wahlke
[See alsoCoalitions; Elections; Interest Groups; Lobbying; Parties, Political; Representation, article onRepresentational Behavior. Other relevant material may be found inPolitical, Behavior; Political Participation; Political Recruitment AND Careers; Public Interest; and in the biographies ofKey; Lowell; Rice.]
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Aydelotte, William 1963 Voting Patterns in the British House of Commons in the 1840s.Comparative Studies in Society and History 5, no. 2: 134–163.
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Lawmaking; the preparation and enactment of laws by a legislative body.
Legislative bodies exist to enact legislation. The legislative process is a series of steps that a legislative body takes to evaluate, amend, and vote on proposed legislation. The U.S. Congress, state legislatures, county boards, and city councils engage in the legislative process. Most legislation is enacted by Congress and state legislatures. Implementation of legislation is left to other entities, both public and private, such as law enforcement agencies, the courts, community leaders, and government agencies.
Legislation begins with the submission of a bill to the legislature for consideration. A bill is a draft, or tentative version, of what might become part of the written law. A bill that is enacted is called an act or statute. The selection of appropriate and clear language for the proposed piece of legislation is critical. Legislators need to understand what is intended by the bill and who will be affected by it.
A bill is amended to accommodate interested and affected groups and to eliminate technical defects. More legislative attention is generally devoted to decisions on amendments than to disputes over whether a bill will be passed. An able legislator or supporter of a piece of legislation constantly seeks ways to silence opposition or convert opponents into supporters. Many important provisions that finally become law are adjusted by amendments in order to accommodate conflicting viewpoints.
Sources of Legislation
Ideas for legislation come from many sources. Legislators who have experience and knowledge in a particular field introduce bills that they think will improve or correct that field. They often copy existing legislation because an idea that works well in one jurisdiction can be useful in another. For example, in the 1970s, legislation that created "no-fault" divorces was copied from state to state.
Legislators receive proposals from the National Conference of Commissioners on Uniform State Laws, a coalition of over three hundred lawyers, judges, and law professors, who are appointed by the states. Conference members draft proposals of uniform and model acts. Such acts attempt to establish uniformity in a single legislative area. For example, the uniform probate code is an attempt to standardize U.S. probate law, and has been widely enacted.
The Council of State Governments, the American Law Institute, the american bar association, and numerous other organizations all produce model acts for legislatures. Even if a uniform or model act or a law used in a neighboring state is not totally applicable, it is easier to edit and revise it than to draft a new one.
Legislation is not motivated solely by existing ideas. Modern legislation is often concerned with changing or protecting social and economic interests. Interest groups usually become involved in the legislative process through lobbyists, who are persons they hire to act for them. Often lobbyists work to protect the status quo by defensive lobbying, that is arguing against a piece of legislation. Other times lobbyists propose a bill. Whether opposing or proposing change, lobbyists typically inform legislators about the expected effect that legislation will have on their particular interest group. Lobbyists also influence legislation through financial contributions to the political campaign committees of legislators.
Modern legislatures have a large staff that helps prepare legislation. On occasion, studies are authorized when a problem is recognized and no solution is readily available. Major legislation often starts with a blue-ribbon legislative commission, which might include citizen members and an independent staff from the academic community. A handful of states have created permanent law revision commissions, which operate independently of the legislature.
In addition, most states have independent offices that act as editors, putting legislative ideas into formal, statutory language that conforms to current usage in the jurisdiction. Modern legislation has become increasingly lengthy and complex, making it difficult for a single legislator to craft a bill alone.
The procedure by which legislation is enacted varies within the following general structure.
A constitution is the basic charter for governments in the U.S. legal system. Constitutions typically specify that some kinds of legislation, like a capital expenditure, require an extraordinary vote, such as passage by two-thirds rather than by a simple majority. Three separate readings, or announcements, of a bill to the full house, are commonly required before a vote can be taken. Some constitutions require a detailed reading each time, but legislatures have found ways to circumvent this mandate.
Constitutions often require an affirmative vote by a majority of all the members of a house, not merely those present, in order to pass a bill. They can also require that the names of members voting aye and nay be recorded in the journal of the legislative body. Constitutions can authorize the executive to veto legislation, and establish a procedure for the legislature to override a veto. Sometimes a specific period of time is prescribed for the legislative session or term, and all work must be completed before expiration of the session.
It is common for a constitution to require that a bill pertain to only one subject, which must be expressed in the title of the bill. For example, An Act to Increase the State Sales Tax from Six to Seven Percent is a proper title for a bill that does exactly that and nothing else. This requirement efficiently packages legislative work, significantly affecting procedure, order, and efficiency. It does not apply to the U.S. Congress, but often applies to state and local legislatures.
Each legislature adopts its own rules to detail the organization and procedure of its body. A standard version of legislative rules is often adopted to cover any situation not governed by a specific rule. Legislatures frequently need to depart from regular procedure in order to accomplish tasks. Therefore, special rules usually provide for the suspension of normal procedure, when necessary. A rules suspension can be allowed only by a two-thirds vote.
Some of the work of the legislature can be accomplished by resolution rather than by bill. A resolution is used to settle internal matters or to make a public pronouncement without enacting a law. Resolutions are used to adopt the rules of the house, to establish committees, to initiate investigations, and to authorize and hire legislative employees. Even more mundane daily work can be accomplished by a motion on the floor. A motion lacks the formality of a resolution in that it cannot be formally announced and printed in the record.
A resolution takes one of several forms. A senate resolution or assembly resolution is adopted by only one house. A joint resolution originates in one house and then is passed in the other house, having the full force of official legislative action. This is the customary form for proposing state constitutional amendments and ratifying amendments to the U.S. Constitution. A concurrent resolution, like a joint resolution, originates in one house and is assented to by the other. It lacks the legal effect of a normally adopted joint resolution, and is often used to express an opinion. Petitions from state legislatures to the president or to the U.S. Congress are drawn as concurrent resolutions. Commendations to persons who have performed socially significant deeds and to victorious athletic teams are typical concurrent resolutions.
The Enactment of a Bill
A bill must follow certain customary steps through a legislature. It is introduced by an elected member who acts as a sponsor. The chief sponsor, who might or might not be the author of the bill, is the legislator who manages the bill as it progresses through the body and who explains it to other legislators. The bill may also have cosponsors, who attach their names to the bill to add support.
When the bill is introduced, it is referred to a standing committee. Whenever possible the bill's sponsors and the legislative leadership attempt to steer the bill to a particular committee. In most legislatures there is room for discretion in the reference of bills. Major legislation might have to be referred to several committees, so the issue might be who receives it first.
Once the bill is referred, the committee must be convinced to place it on the agenda so that it can be considered and passed. The committee chair is in charge of the committee, and requests for a slot on the agenda of the committee must be directed to the chair and the chair's staff. An autocratic chair can decide which bills to consider without consulting committee members, but much of the work of a committee is done by consensus.
Competition for committee time is generally intense. Usually bills that are heard are essential, popular, or generally beneficial. Occasionally they are noncontroversial or not especially appealing to the chair. A bill can even be scheduled merely to impede another, unfavorable proposal. If a spot cannot be attained on the agenda, a sponsor can seek consideration by a subcommittee so that a rough proposal can be polished into a draft that will be more appealing to the full committee.
Legislative procedure is designed so that a bill is heard when a need for it is demonstrated. Unnecessary or poorly drafted bills are bottled up in committees where no one takes time to consider them. As a bill approaches passage, it becomes more difficult to amend it or kill it. Efforts made early in the history of the bill are generally more effective. For example, fewer members have to be persuaded when a bill is still being considered by a committee, and fewer compromises have to be made.
If a committee decides not to act on a bill and tables it, that bill is effectively stopped for that session of the legislature. If the committee recommends that the bill be indefinitely postponed, the bill is formally killed and that recommendation is reported to the floor as a committee report to be confirmed by house vote. Adoption of the committee report officially kills the bill. If the committee recommends that the bill be passed, the bill is submitted to the floor with a favorable report, which is essential to its passage. If the bill must go through more than one committee, the first committee must then refer it to the second, and the first favorable decision gives it some momentum toward success.
After a legislative body approves a favorable committee report, the bill is placed on the agenda for floor action, or action by the full body. The agenda can be lengthy. During its wait for floor action, the bill is subject to a motion to refer it again to the same committee or any other committee for reconsideration. Making a successful motion to refer it again is a classic method of defeating a bill without taking the difficult step of going on record against it on a final vote.
In most state legislatures, a bill is first considered on the floor in a committee of the whole, in which every member of the house sits as a committee to debate the bill. A committee of the whole is derived historically from the desire of early English parliaments to act in semisecrecy, without recorded votes that the queen or king could monitor. The idea has survived, and legislators continue to act without suffering the political consequences of an unpopular vote on the record.
Procedurally, the consideration of a bill by a committee of the whole allows debate without limits on the duration of time or number of times a member can speak. It also provides an interval between the first formal floor consideration and final passage of the bill, which permits more time for careful deliberation.
The use of the committee of the whole has, however, declined. More bills are submitted for deliberation by the legislative body and final vote while the subject is still fresh in the members' minds. A legislature can, therefore, eliminate use of the committee of the whole for some types of bills, for special circumstances, or altogether.
Almost every legislature has a consent calendar for bills identified by committee reports as noncontroversial. Each such bill is read at the appointed time and briefly explained, and a vote is taken. Even if only a few votes dissent, the bill is returned to the regular calendar for examination. The consent calendar permits a legislature to dispose of a host of minor bills expeditiously.
As a general practice, the legislative leadership uses a special order to schedule debate, amendment, and passage of a bill at a single session. A bill can be designated for special order by a vote of two-thirds, or more commonly by selection by a priority-setting or policy committee. Bills from appropriations and tax committees might receive automatic special order privileges because of the necessity for their enactment.
Some constitutions, including that of the United States, permit a vote on the final passage of a bill to be oral and unrecorded unless a member calls for the ayes and nays. Ordinarily, a member is entitled to do this on any motion, including final passage.
Immediately following a vote on final passage, a motion to reconsider can be made. In effect this motion requests another vote on the bill. Although the number of successful reconsiderations is small, the device can facilitate additional compromise to accommodate competing interests on the issue. Generally, only one reconsideration of any vote is allowed, so both sides endeavor to gather switch votes after a close vote. The victorious side attempts to conduct the vote on the reconsideration immediately, so that the losers do not have time to marshal strength. In the U.S. Congress, a motion to reconsider is made routinely after every vote, to give the vote a finality by precluding such a motion at a later time.
In a bicameral legislature, once a bill is passed in one house, the chances for success in the second house are good because the bill has become a product of compromise. There is no concern about wasting time on a bill that can never succeed, because the bill has already cleared the other house. Busy legislators prefer not to repeat debates that have already been extensive in the first house, and they respect the value of cooperation between the two houses.
A single bill must be passed by both houses of a bicameral legislature and be signed by the executive. If the houses pass identical but separate bills, one of the houses must approve the official bill from the other house. The presiding officer and the chief clerical official must verify passage of a bill by signing the official or enrolled copy before the bill is ready for the executive's signature. After the final affirmative vote for passage in the first house, the bill is put into an official engrossment, or formal final copy, and transmitted to the other house for consideration.
Since each house must pass the exact same bill, the form that is passed in the first house can be substituted for a parallel or companion bill in the second house. If the second house accepts the version that is adopted in the first house, it returns the bill with a message to that effect. The first house then enrolls, transcribes, and registers the bill on a roll of bills and submits it to the executive for signature.
If the second house amends the bill, it returns the bill to the first house with a message requesting agreement on the changes. If the amendments are acceptable, a motion is made to concur and to place the bill on repassage. If the motion passes, all the formalities of a final vote are repeated for the bill in its amended form. If repassed the bill is enrolled in its amended form, signed by the legislative officers, and submitted to the executive for signature.
When the two houses cannot agree on a final form for a bill, a complex procedure of compromise is attempted in a conference committee comprising usually three to five members from each house. If the conferees can reach agreement, a conference committee report is filed in both houses that reflects the final changes. Both houses must approve the report, without amendment, for the bill to be passed.
Once the bill is approved by both houses, it is put into final form and transmitted to the executive. If the executive signs the enrolled bill, it is filed with the secretary of state. The enrolled bill is then an act, a written law. Depending on the bill, the act may become effective upon signature of the executive or at some date specified in the bill.
Executive Veto Power
An executive can refuse to sign a bill and can return it to the legislature with a veto message explaining why. The legislature can attempt, first in the house where the bill originated, to override the veto by an extraordinary vote, usually a two-thirds majority.
Governors in a majority of states also have the authority to select particular items from an appropriations bill and individually veto them. This authority, called the line-item veto, became popular because it allowed the executive to cancel specific appropriations items from bills that were hundreds of pages long. Congress enacted the federal line-item veto authority in 1996 (2 U.S.C.A. §§ 691, 692) to give the president the ability to impose cuts on the federal budget. In Clinton v. City of New York, 524 U.S.417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), however, the Supreme Court ruled that the Line-Item Veto Act violated the Presentment Clause under Article I of the Constitution. Under the Presentment Clause, after a bill has passed both Houses, but "before it becomes a Law," it must either be approved (signed) or returned (vetoed) by the president. By canceling only parts of the legislation, the president, in effect, amends the law. The Court concluded that there was no constitutional authorization for the president to amend legislation at his discretion.
The line-item veto, like a regular veto, can be overridden at the state and federal levels by a two-thirds majority vote.
If the executive does not sign a bill or return it to the legislature with a message of disapproval, the bill becomes law within a prescribed number of days. At the state level, the governor turns the bill over to the office of the secretary of state, and the fact that it became law without the governor's signature is noted. If the legislature adjourns before the governor's time for signing expires, the bill does not become law without the signature. The governor's time for consideration has been curtailed, and the adjournment prevents the governor from returning the bill with a veto message. In this case the governor can defeat the bill by refusing to act, which produces a pocket veto.
The veto power gives the executive a pivotal role in the legislative process, if the executive cares to assert his or her authority. Use of the veto power varies considerably, depending on the personality of the executive, the political allegiances of house members and independence of legislative leaders, local customs, and the quality of the work produced by the legislature.
Dewar, Helen, and Joan Biskupic. 1998. "Court Strikes Down Line-Item Veto." Washington Post (June 26).
"Legislation." West's Encyclopedia of American Law. . Encyclopedia.com. (January 15, 2019). https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/legislation
"Legislation." West's Encyclopedia of American Law. . Retrieved January 15, 2019 from Encyclopedia.com: https://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/legislation
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leg·is·la·tion / ˌlejəˈslāshən/ • n. laws, considered collectively: tax legislation.
"legislation." The Oxford Pocket Dictionary of Current English. . Encyclopedia.com. (January 15, 2019). https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/legislation
"legislation." The Oxford Pocket Dictionary of Current English. . Retrieved January 15, 2019 from Encyclopedia.com: https://www.encyclopedia.com/humanities/dictionaries-thesauruses-pictures-and-press-releases/legislation
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"legislation." World Encyclopedia. . Encyclopedia.com. (January 15, 2019). https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/legislation
"legislation." World Encyclopedia. . Retrieved January 15, 2019 from Encyclopedia.com: https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/legislation
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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.
Bennett, Robert 1979 "Mere" Rationality in Constitutional Law: Judicial Review and Democratic Theory. California Law Review 67:1049–1103.
Bickel, Alexander and Wellington, Harry 1957 Legislative Purpose and the Judicial Function: The Lincoln Mills Case. Harvard Law Review 71:1–39.
Brest, Paul 1971 An Approach to the Problem of Unconstitutional Legislative Motive. Supreme Court Review 1971:95–146.
Ely, John H. 1970 Legislative and Administrative Motivation in Constitutional Law. Yale Law Journal 79:1205–1341.
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.
Linde, Hans 1976 Due Process of Lawmaking. Nebraska Law Review 55:197–255.
Michelman, Frank 1977 Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy. Indiana Law Journal 53:145–206.
Morgan, Donald G. 1966 Congress and the Constitution: A Study in Responsibility. Cambridge, Mass.: Belknap Press.
Wechsler, Herbert 1965 The Courts and the Constitution. Columbia Law Review 65:1001–1014.
"Legislation." Encyclopedia of the American Constitution. . Encyclopedia.com. (January 15, 2019). https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/legislation
"Legislation." Encyclopedia of the American Constitution. . Retrieved January 15, 2019 from Encyclopedia.com: https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/legislation