Representative lawmaking

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 335-355

  Waldron, Jeremy ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 67649594964     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (89)

1. 1 I have emphasized this aspect of the matter in a lot of my work. See, e.g., Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346, 1348 (2006).
2. 2 See ROBERT F. WILLIAMS, STATE CONSTITUTIONAL LAW: CASES AND MATERIALS 643 (4th ed. 2006).
3. 3 For information about the British House of Lords, see COMPARATIVE POLITICS TODAY 171-72 (Gabriel A. Almond et al. eds, 9th ed. 2008);
4. and for information on the Canadian Senate, see GREGORY S. MAHLER, NEW DIMENSIONS OF CANADIAN FEDERALISM: CANADA IN a COMPARATIVE PERSPECTIVE 154-57 (1987).
5. 4 Notice that I am using "legislature" in a somewhat restricted sense. A legislature is not just any body or institution that makes law. Otherwise the question I began with would be nonsensical. I asked: What makes legislation attractive as a mode of lawmaking, compared to lawmaking by judges or lawmaking by decree or by executive agencies? But if "legislature" is just a term we give to any entity that makes law, then the question would sound like: "What makes legislation attractive as a mode of lawmaking compared to legislation?"
6. 5 See ALAN WOLFE, DOES AMERICAN DEMOCRACY STILL WORK? 123 (2006).
7. 6 2 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 520-33 (Robert Campbell ed., rev. 5th ed. 1885).
8. 7 Id. at 621.
9. 8 See, for example, President George W. Bush's announcement of his nomination of Judge Samuel A. Alito to the Supreme Court, in which the President said: "He has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." Joseph Curl, Bush Picks Alito for Supreme Court; Right Hails Choice, But Democrats See Threat, WASH. TIMES, NOV. 1, 2005, at Al.
10. 9 U. S. CONST, art. II, § 2, cl. 2.
11. 10 See, e.g., Shirley S. Abrahamson, Speech, The Ballot and the Bench, 76 N. Y. U. L. REV. 973, 978-85 (2001) (discussing the potential problems with having elected judges).
12. 11 As I said in JEREMY WALDRON, LAW AND DISAGREEMENT 28-29 (1999): Political scientists remind us, correctly, that law-making is just one of the functions performed by the institutions we call legislatures, and, from the point of view of political power, not necessarily the most important. A political scientist's analysis of law-making behaviour in legislatures is likely to be continuous with his analysis of other functions performed by these bodies - functions such as the mobilization of support for the executive (in the UK the actual selection of the executive), the venting of grievances, the discussion of national policy, the processes of budgetary negotiation, the ratification of appointments, and so on. From an empirical point of view, it may be impossible to predict how a given set of legislators will behave in sessions devoted specifically to law-making without understanding what is going on between them (and between them and their constituents and various interest groups) in other 'legislative' contexts that really have nothing to do with that task. (Legislator A may promise to support B's bill, but only in return, say, for B's support in blocking a judicial appointment.) This is bound to contrast with the jurisprudential point of view, which regards law-making as an activity whose character and significance are sui generis.
13. 12 This may not be true, however, at all times and in all political systems. British voters, for example, vote for legislators of one party rather than another because, in a Westminsterstyle system, that is the only way they can affect the choice of the executive (i.e., the choice of the Prime Minister and his or her cabinet). See, e.g., ROLF H. W. THEEN and FRANK L. WILSON, COMPARATIVE POLITICS: AN INTRODUCTION TO SIX COUNTRIES 58-67 (1986).
14. 13 See, e.g., WOLFE, supra note 5, at 125-27 (discussing the intense politicization of the judiciary and how certain judges declare laws regulating business unconstitutional in order to promote free-market economic principles).
15. 14 Cf. JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 177-82 (2007) (criticizing Justice Scalia for refusing to participate in such back-room dealmaking).
16. 15 Jeremy Waldron, Principles of Legislation, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 15, 22 (Richard W. Bauman and Tsvi Kahana eds., 2006).
17. 16 Id.
18. 17 Id. at 19 (citing JOHN LOCKE, TWO TREATISES OF GOVERNMENT 324 (Peter Laslette, Cambridge Univ. Press 1988) (1690)).
19. 18 JOHN RAWLS, POLITICAL LIBERALISM 66-71 (1993).
20. 19 I also believe that this affects the way in which citizens discharge their participatory powers: those who advocate changes in the law have a responsibility to orient that advocacy to a forum where their proposal can be explicitly discussed for what it is, rather than to other forums where it will be presented under the guise of a matter of interpretation. A forum such as a constitutional court may be politically more promising for a given group, but that is only because less care has been taken with the legitimacy conditions of lawmaking in that forum (precisely because it has not been thought to be a forum for lawmaking). There is a responsibility not to try and "steal a march" on one's political opponents in this way, but instead to submit one's proposals for honest debate and evaluation in a forum which everyone knows is the place to go to in order to reach collective decisions about whether and how the law should be changed.
21. 20 For more on this argument, see Jeremy Waldron, Do Judges Reason Morally?, in EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY 38, 44-46 (Grant Huscroft ed., 2008).
22. 21 See id. at 60-61; Jeremy Waldron, Public Reason and "Justification" in the Courtroom, 1 J. L. PHIL. and CULTURE 107, 112 (2007).
23. 22 What follows is adapted from Jeremy Waldron, Legislation by Assembly, in JUDICIAL POWER, DEMOCRACY AND LEGAL POSITIVISM 251, 252-54 (Tom Campbell and Jeffrey Goldsworthy eds., 2000).
24. 23 Id. at 252.
25. 24 Id.
26. 25 Id.; see also HOUSE OF LORDS BRIEFING, MEMBERSHIP: TYPES OF MEMBER, ROUTES TO MEMBERSHIP, PARTIES and GROUPS 2, 6 (2008), available at http://www.parliament.uk/documents/upload/ HofLBpmembership.pdf.
27. 26 UK Parliament, State of the Parties, http://www.parliament.uk/ directories/hcio/stateparties.cfm (last visited Feb. 26, 2009).
28. 27 See, e.g., HERBERT A. SIMON, DONALD W. SMITHBURG and VICTOR A. THOMPSON, PUBLIC ADMINISTRATION 530 (Transaction Publishers 1991) (1950) ("Because of the mass and complexity of governmental problems, and because of the size of legislatures, legislation in America is reviewed principally by small committees of the legislature.").
29. 28 THEEN and WILSON, supra note 12, at 59-60.
30. 29 See, e.g., SIMON, SMITHBURG and THOMPSON, supra note 27, at 530-31.
31. 30 WALTER BAGEHOT, THE ENGLISH CONSTITUTION 4-5 (Sussex Academic Press 1997) (1867).
32. 31 The Chinese legislature, the National People's Congress, has nearly three thousand members, DU XICHUAN and ZHANG LINGYUAN, CHINA'S LEGAL SYSTEM: A GENERAL SURVEY 42 (1990), but I doubt that real legislative power is distributed equally in that assembly.
33. 32 JEREMY WALDRON, THE DIGNITY OF LEGISLATION 34-35 (1999).
34. 33 This was the title of one of the panels in this symposium. For arguments for and against whether legislation is an unprincipled, incoherent, undignified mess, see generally Editors' Note on "Legisprudence, " 89 B. U. L. REV 423 (2009);
35. Alan L. Feld, The Shrunken Power of the Purse, 89 B. U. L. REV 487 (2009);
36. Vlad Perju, A Comment on "Legisprudence, " 89 B. U. L. REV. 427 (2009);
37. Ann Seidman and Robert B. Seidman, IL TAM: Drafting Evidence-Based Legislation for Democratic Social Change, 89 B. U. L. REV. 435 (2009).
38. 34 NICCOLO MACHIAVELLI, DISCOURSES ON LIVY 16 (Harvey C. Mansfield and Nathan Tarcov trans., 1996) (1531).
39. 35 CONDORCET, Essay on the Application of Mathematics to the Theory of Decision-Making, in CONDORCET SELECTED WRITINGS 33, 48-56 (Keith Michael Baker ed., 1976). For recent use of Condorcet's result in legal theory, see generally Eric A. Posner and Cass R. Sunstein, The Law of Other States, 59 STAN. L. REV. 131 (2006).
40. 36 CONDORCET, supra note 35, at 38.
41. 37 Id. at 49.
42. 38 ARISTOTLE, POLITICS 95-96 (Peter L. Phillips Simpson trans., 1997).
43. 39 See, e.g., WOLFE, supra note 5, at 106-07 (explaining the need for some institutions of democracy to remain disinterested).
44. 40 See, e.g., Peter Applebome, Connecticut Hopefuls Flock to Public Financing, N. Y. TIMES, Oct. 23, 2008, at A29 (recounting a successful Connecticut experiment in which candidates for the state's General Assembly elected to receive public campaign financing, which allowed the candidates to "focus on the issues" instead of special interests).
45. 41 See, e.g., DAVID R. OBEY, RAISING HELL FOR JUSTICE: THE WASHINGTON BATTLES OF A HEARTLAND PROGRESSIVE 3-5 (2007) (discussing the personal and group interests of those who lobby for legislative changes in Congress).
46. 42 The Annual Meeting of the Association of American Law Schools is a gathering of the Association's diverse membership. Any law school is invited to apply for membership after it has offered five years of instruction and has graduated its third class. The Association of American Law Schools, AALS Membership, http://www.aals.org/about-membership. php (last visited Feb. 24, 2009).
47. 43 See, e.g., HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 84 (1967).
48. 44 Id. at 84-85.
49. 45 JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND THE DISCOURSES 263 (G. D. H. Cole trans., Alfred A. Knopf, Inc. 1973) (1913). According to Rousseau: Sovereignty... cannot be represented; it lies essentially in the general will, and will does not admit of representation: it is either the same, or other; there is no intermediate possibility. The deputies of the people, therefore, are not and cannot be its representatives: they are merely its stewards, and can carry through no definitive acts. Every law the people has not ratified in person is null and void - is, in fact, not a law. The people of England regards itself as free; but it is grossly mistaken; it is free only during the election of members of parliament. As soon as they are elected, slavery overtakes it, and it is nothing. The use it makes of the short moments of liberty it enjoys shows indeed that it deserves to lose them. Id.
50. 46 Nadia Urbinati, Representation as Advocacy: A Study of Democratic Deliberation, 28 POL. THEORY 758, 762 (2000).
51. 47 See JOHN HASKELL, DIRECT DEMOCRACY OR REPRESENTATIVE GOVERNMENT 151 (2001).
52. 48 My work on judicial review is based on the principles of democratic legitimacy and political equality. See generally supra note 1 and accompanying text.
53. 49 See, e.g., Mattias Kumm, Democracy is Not Enough: Socratic Contestation, the Rationalist Human Rights Paradigm and the Point of Judicial Review (Sept. 8, 2008) (unpublished manuscript presented to NYU Faculty Workshop, on file with author).
54. 50 Urbinati, supra note 46.
55. 51 NADIA URBINATI, REPRESENTATIVE DEMOCRACY: PRINCIPLES AND GENEALOGY (2006).
56. 52 Id. at 10-12.
57. 53 See id. at 138-61 for a discussion of Sieye's model of representative government and id. at 176-222 for a discussion of Condorcet's ideas on indirect democracy.
58. 54 Urbinati, supra note 46, at 765-70.
59. 55 Id. at 770-72.
60. 56 ROUSSEAU, supra note 45, at 210. Rousseau elucidated: When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. Thus the law may indeed decree that there shall be privileges, but cannot confer them on anybody by name. It may set up several classes of citizens, and even lay down the qualifications for membership of these classes, but it cannot nominate such and such persons as belonging to them.... In a word, no function which has a particular object belongs to the legislative power. Id.
61. 57 See supra notes 16-18 and accompanying text.
62. 58 Compare the discussion of generality in LON L. FULLER, THE MORALITY OF LAW 46-49 (rev. ed. 1969) (characterizing "generality, " or the requirement that "there must be rules, " as an important primary component of a legal system).
63. 59 ROUSSEAU, supra note 45, at 210.
64. 60 Id. at 211.
65. 61 See id. at 203-07, 271-76.
66. 62 See supra notes 50-55 and accompanying text.
67. 63 ROUSSEAU, supra note 45, at 263.
68. 64 See also the discussion of different uses of consent in political theory in Jeremy Waldron, Theoretical Foundations of Liberalism, 37 PHIL. Q. 127, 135-39 (1987).
69. 65 See U. S. CONST, art. I, § 9, cl. 3.
70. 66 For a similar view, see THE FEDERALIST No. 53, at 333 (James Madison) (Clinton Rossitered, 1961). Madison examined: How can foreign trade be properly regulated by uniform laws, without some acquaintance with the commerce, the ports, the usages, and the regulations of the different States? How can the trade between the different States be duly regulated, without some knowledge of their relative situations in these and other points? How can taxes be judiciously imposed and effectually collected if they be not accommodated to the different laws and local circumstances relating to these objects in the different States? How can uniform regulations for the militia be duly provided without a similar knowledge of some internal circumstances by which the States are distinguished from each other? These are the principal objects of federal legislation and suggest most forcibly the extensive information which the representatives ought to acquire. Id.
71. 67 Urbinati, supra note 46, at 760.
72. 68 Id. at 769.
73. 69 See the discussion in R. M. HARE, FREEDOM AND REASON 38-40 (1963), for the contrast between universal and particular on the one hand, and between general and specific on the other (Hare uses "universal" in the sense that I am using "general").
74. 70 Sometimes the legislature actively adjusts geographical representation to ensure this as a more or less formalized objective. For an example of how we adjust geographical representation to attempt a balance of race, see generally the discussion in Lani Guinier, Groups, Representation, and Race-Conscious Districting: A Case of the Emperor's Clothes, 71 TEX. L. REV. 1589 (1993).
75. 71 For a useful exchange on the relationship between equitable decision-making and the generality required by the Rule of Law, see generally Lawrence B. Solum, Equity and the Rule of Law, in THE RULE OF LAW: NOMOS XXXVI, at 120 (Ian Shapiro ed., 1994);
76. Stephen J. Burton, Particularism, Discretion and the Rule of Law, in THE RULE OF LAW: NOMOS XXXVI, supra, at 190.
77. 72 See The Knesset in the Government System, The Electoral System in Israel, http://www.knesset.gov. il/deSCRIPTion/eng/eng-mimshal-beh.htm (last visited Feb. 24, 2009).
78. 73 For a description, see the official New Zealand government account at Elections New Zealand, Maori Electoral Option - FAQ, http://www.elections.org. nz/maori/enrolment/maori-option-faq.html (last visited Feb. 24, 2009).
79. 74 See supra notes 50-55 and accompanying text.
80. 75 URBINATI, supra note 51, at 183.
81. 76 Urbinati, supra note 46, at 768.
82. 77 URBINATI, supra note 51, at 72-73.
83. 78 Urbinati, supra note 46, at 760.
84. 79 HANNAH ARENDT, ON REVOLUTION 230 (1963) [hereinafter ARENDT, ON REVOLUTION], There she also observes that "limitation to a small and chosen body of citizens was to serve as the great purifier of both interest and opinion, to guard 'against the confusion of a multitude.'" Id. at 229. It is not clear whether this is Arendt's own view or that of the American framers she is discussing. Arendt is no doubt drawing upon the view expressed in The Federalist No. 10 about the importance of "refin[ing] and enlarging] the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." THE FEDERALIST No. 10, at 82 (James Madison) (Clinton Rossiter ed., 1961). This paragraph is adapted from Jeremy Waldron, Arendt's Constitutional Politics, in THE CAMBRIDGE COMPANION TO HANNAH ARENDT 201, 201-15 (Dana Villa ed., 2000).
85. 80 See HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM 115, 250-66 (1973).
86. 81 ARENDT, ON REVOLUTION, supra note 79, at 231.
87. 82 See MARGARET CANOVAN, HANNAH ARENDT: A REINTERPRETATION OF HER POLITICAL THOUGHT 35 (1992).
88. 83 See URBINATI, supra note 51, at 184.
89. 84 Id. at 149 ("Through the arithmetical unit of the vote, the electors who vote for a candidate enter simultaneously into a pluriverse relation of reflection - to their representatives, to the members of their constituency, to all the electors in the nation, and to the legislative body.").