The pros and cons of politically reversible "semisubstantive" constitutional rules

Fordham Law Review

Volumn 77, Issue 6, 2009, Pages 2835-2891

  Coenen, Dan T ^a  

^a UNIVERSITY OF GEORGIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 67650533834     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (344)

1. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692,750 (2004) (Scalia, J., concurring) ("[U]nelected federal judges have been usurping [Congress's] lawmaking power-"); see also John Gramm, Letter to the Editor, We Need to Pray for Our Elected Officials, THE PANTAGRAPH,Feb. 12, 2004, at A10 ("It's certainly too bad that our nation has degenerated to the point that unelected officials in our government, especially in the judicial department and the higher court federal judge system, usurp authority that is unconstitutional and biased against religion.").
2. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).
3. See id. (suggesting that the "very purpose" of having constitutional rights is "to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts").
4. Sch. Dist. v. Schempp, 374 U.S. 203, 223 (1963).
5. Brown v. Bd. of Educ, 347 U.S. 483, 493-95 (1954).
6. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846-53, 869-70 (1992).
7. Dan T. Coenen, A Constitution of Collaboration: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue, 42 WM. &MARY L. REV.1575, 1578-80 (2001) (describing content-centered nature of legislatively nonreversible constitutional rules) (internal quotation marks omitted).
8. The leading treatment of this subject is ALEXANDERM. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS(1962). In it, Professor Alexander Bickel describes the judicial-review-wielding U.S. Supreme Court as a "deviant institution in the American democracy." Id. at 18. See generally Barry Friedman, The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. REV.333, 334 (1998) ("The 'countermajoritarian difficulty' has been the central obsession of modern constitutional scholarship."). For two leading efforts to reconcile judicial review with democratic self-governance, see 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS(1991) and JOHN HART ELY, DEMOCRACY AND DISTRUST:A THEORY OF JUDICIAL REVIEW(1980).
9. 531 U.S. 356(2001).
10. Id. at 372.
11. For a more detailed discussion of oard of Trustees of the University of Alabama v. Garrett, see for example William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN.L. REV.87, 117-19 (2001); Dan T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. CAL.L. REV.1281, 1325-26 (2002); Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 YALELJ. 1707, 1725-27 (2002).
12. 531 U.S. 32(2000).
13. Id. at 37-38.
14. See, e.g., Thomas K. Clancy, Introduction: 2006 Fourth Amendment Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of "Purpose " Analysis To Measure the Reasonableness of a Search or Seizure?, 76 MISS. L. J. i, vii n.17 (2006) ("[N]othing in the Edmond Court's analysis would prevent Indianapolis from simply re-labeling its program and conducting the same screening for drugs ... .'*).
15. Edmond, 531 U.S. at 47; see also id. at 37-38 (distinguishing early ruling that upheld fixed checkpoints in Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), on the ground that that program "aimed at removing drunk drivers from the road"); id. at 47 n.2 ("[W]e need not decide whether the State may establish a checkpoint program with the primary purpose of checking . . . driver sobriety and a secondary purpose of interdicting narcotics."); id. at 55-56 (Rehnquist, C.J., dissenting) ("[I]f the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual motorists, it might well be valid.").
16. 504 U.S. 298 (1992).
17. Id. at 311.
18. Id. at 318.
19. See, e.g., Ne. Bancorp, Inc. v. Bd. of Governors of the Fed. Reserve Sys., 472 U.S. 159, 174 (1985) (noting that combination of state and federal legislation defeated a dormant Commerce Clause challenge to state exclusion of nonresident bank holding companies). See generally DANT. COENEN, CONSTITUTIONAL LAW: THE COMMERCE CLAUSE292-96 (2004); 1 LAURENCEH. TRIBE, AMERICAN CONSTITUTIONAL LAW§ 6-35, at 1242-45 (3d ed. 2000) (discussing congressional authorization of otherwise impermissible state regulation).
20. Quill, 504 U.S. at 318.
21. This type of review has received many names, such as "structural due process," Laurence H. Tribe, Structural Due Process, 10 HARV.C.R.-C.L. L. REV.269 (1975); "due process of lawmaking," Hans A. Linde, Due Process of Lawmaking, 55 NEB.L. REV.197 (1976); and "Type III judicial review," Guido Calabresi, The Supreme Court, 1990 Term- Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV.L. REV.80, 83 (1991). I prefer "semisubstantive review" because (1) it directs attention to the substantive constitutional constraints that such review implicates, and (2) other labels-particularly labels that incorporate the term "due process"-improperly imply that this form of review derives exclusively or primarily from the Due Process Clauses of the Fifth and Fourteenth Amendments. See infra notes 121-34 and accompanying text (developing the idea that semisubstantive review does not derive solely, or primarily, from the Due Process Clauses).
22. The doctrinal categories are: (1) rules of clarity; (2) form-based deliberation rules; (3) proper-findings-and-study rules; (4) representation-reinforcing structural rules; (5) time-driven second-look rules; (6) thoughtful-treatment-of-the-area rules; (7) constitutional common-law and common-law-like rules; (8) proper-purpose rales; and (9) constitutional "who" rales. See generally Coenen, supra note 7, at 1587-805 (providing descriptions and examples of each form).
23. See, e.g., Cass R. Sunstein, The Supreme Court, 1995 Term-Foreword: Leaving Things Undecided, 110 HARV.L. REV.4, 82 (1996) (noting that semisubstantive doctrines can "require[] state officials to set out criteria on their own and... in that way [be] democracy-forcing"; adding that these rules are "intended to catalyze and improve, rather than to preempt, democratic processes"). It is important to recognize that semisubstantive review involves only one of several ways in which courts involve other arms of government in the elaboration of constitutional law. For a helpful review of different dialogic approaches, see Christine Bateup, The Dialogic Promise: Assessing the Normative Potential Theories of Constitutional Dialogue, 71 BROOK.L. REV.1109 (2006). For a brief effort to locate semisubstantive decision making in the broader context of constitutional law in general and dialogic techniques in particular, see Coenen, supra note 7, at 1579-81.
24. See Coenen, supra note 7, at 1579; see also supra notes 4-6 and accompanying text (discussing school prayer, race-segregation, and abortion cases).
25. See Coenen, supra note 7, at 1585-86. Some commentators have argued for a more across-the-board approach, at least with respect to certain forms of semisubstantive doctrines. For a recent proposal that would render findings-and-study rules applicable to all federal legislation (not just legislation that raises particularly significant constitutional problems), see Victor Goldfeld, Note, Legislative Due Process and Simple Interest Group Politics: Ensuring Minimal Deliberation Through Judicial Review of Congressional Processes, 79 N.Y.U. L. REV.367 (2004). For an argument that all judicial rulings of constitutional law should be reversible by ordinary legislation, see Kenneth Ward, Legislative Overrides as a Check on Judicial Review (2007) (unpublished manuscript), available at http://works. bepress.com/kenneth-ward/l/. For one effort to build on the use of semisubstantive review in a particular doctrinal context, see David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA.L. REV.1229, 1292-99 (2002) (advocating that courts "search for ways" to develop Constitution-based rules of criminal procedure that "minimize the dangers of intruding into decisions normally left to the political branches," including through use of rules "'reversible' by the political branches").
26. This style of decision making also pervades constitutional law on the international stage. In Great Britain, Canada, and New Zealand, for example, "legislatures [possess] the power to have the final word on what the law is," following judicial determinations of unconstitutionality. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM.J. COMP. L. 707, 746 (2001).
27. MARK TUSHNET, RED, WHITE, AND BLUE:A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW201-13 (1988). Professor Mark Tushnet has argued that semisubstantive review is "beset by several difficulties." Id. at 206. He has further noted that "proponents of structural review have failed to confine the Court's discretion both in deciding when to invoke structural review and in deciding when its requirements are satisfied." Id. at 208. He finally concluded that "[s]tructural review may fail as a theory." Id. at 213. In the text, I specifically reference Professor Tushnet's work "[d]uring the 1980s," because in later years he seems to have seen greater value in judicial use of these doctrines. See Mark Tushnet, Subconstitutional Constitutional Law: Supplement, Sham, or Substitute?, 42 WM. &MARY L. REV.1871,1872 (2001) ("Normatively, a combination of full democratic choice coupled with subconstitutional doctrines to ensure that such choice is informed, carefully made, and the like, might be more attractive than a system in which democratic choice is limited substantively by the courts.").
28. See supra note 27.
29. Over the years, some commentators have endorsed politically reversible judicial review as a general theory, at least in specified fields, such as substantive due process. See generally Calabresi, supra note 21; Daniel O. Conkle, Nonoriginalist Constitutional Rights and the Problem of Judicial Finality, 13 HASTINGS CONST.L.Q. 9 (1985); Terrance Sandalow, Judicial Protection of Minorities, 75 MICH.L. REV.1162 (1977). For an approach to judicial review that would "allow Congress and the President to override judicial precedents through ordinary legislation," see Ward, supra note 25, at 1.
30. See Frickey & Smith, supra note 11, at 1755 (finding that the Court's approach "lacks an adequate conceptualization of legislative actors, has an excessively narrow definition of the legislative record, and appears to reflect an inaccurate view of deliberation and the legislative process"). Other commentators have criticized findings-based rulings as well. See A. Christopher Bryant & Timothy J. Simeone, Remanding to Congress: The Supreme Court's New "On the Record" Constitutional Review of Federal Statutes, 86 CORNELLL. REV.328, 331 (2001) (stating that the Court's approach "is fundamentally ill advised"); Buzbee & Schapiro, supra note 11, at 90-91 (asserting that the Court's approach "demonstrates judicial suspicion of congressional motives" and has "no support in precedent or in constitutional text or structure"); Ruth Colker & James J. Brudney, Dissing Congress, 100 MICH.L. REV.80, 85 (2001) (raising the concern that the "[Court's] record requirement could not reasonably have been anticipated at the moment of legislative deliberation "); see also Goldfeld, supra note 25, at 412-20 (describing objections to court-imposed "legislative due process" rules).
31. For a truncated enumeration of arguments for semisubstantive review, see Coenen, supra note 7, at 1834-45.
32. See Coenen, supra note 11, at 1287 (describing constitutional "how" rules).
33. See generally WILLIAMN. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION355-82 (2d ed. 2006). The authors discuss substantive canons, including those that "correlate with basic values embedded in the Constitution," id. at 357, and consider in detail the preference for avoiding serious constitutional questions, as well as federalism-driven canons, which seem designed to encourage Congress to "deliberate carefully about... intrusions upon core state functions." Id. at 358.
34. 531 U.S. 159(2001).
35. Id. at 162-63.
36. Id. at 163-65.
37. Id. at 163-66,169 (quoting 33 U.S.C. § 1362(7) (2006)).
38. Id. at 162.
39. Id. at 172.
40. Id. at 173.
41. Id. at 174.
42. Id. at 172,174.
43. 487 U.S. 815(1988).
44. Id. at 818-19.
45. Id. at 859-78 (Scalia, J., dissenting).
46. Id. at 821 (plurality opinion) (quoting Trop v. Dulles, 356 U.S. 86,101 (1958)).
47. Id. at 848-59 (O'Connor, J., concurring). Justice Kennedy did not participate in the Thompson v. Oklahoma decision. Id. at 838.
48. Id. at 848-49.
49. Id. at 849.
50. Id. at 858.
51. Id. at 857.
52. Id.
53. Id. at 856.
54. Id. at 857.
55. Notably, Justice O'Connor's opinion in Thompson does not stand alone in using this sort of extra-super-clear-statement rule. See Coenen, supra note 11, at 1308-13 (discussing Justice Thomas's concurring opinion on congressional abrogation of sovereign immunity in Kimel v. Florida Board of Regents, 528 U.S. 62, 99-109 (2000), and its similarities to the Thompson concurrence).
56. Thompson, 487 U.S. at 876-77 (Scalia, J., dissenting).
57. Id. at 877.
58. 514 U.S. 549(1995).
59. Id. at 551-52.
60. Id. at 562.
61. Id.
62. Id.
63. Id. at 563. Building on United States v. Lopez, many lower court judges deemed the presence or absence of findings decisive in assessing commerce-power cases. See, e.g., United States v. Rybar, 103 F.3d 273, 292 (3d Cir. 1996) (Alito, J., dissenting) (voting to invalidate federal ban on machine gun possession as exceeding Congress's commerce power, but noting that he "would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce"); see also id. at 279 (majority opinion) (reasoning that, "unlike the situation in Lopez, there are legislative findings," although made in connection with earlier firearms legislation). In its post-Lopez decision in United States v. Morrison, a five-Justice majority of the Court invalidated a law that created a federal action for sex-based violence notwithstanding the existence of extensive congressional findings that such action, in the aggregate, substantially harms interstate commerce. 529 U.S. 598, 601-02, 614 (2000). The four dissenters sought to distinguish Lopez on precisely this ground. Id. at 628-29 (Souter, J., dissenting). And the majority itself did not foreclose the possibility that congressional findings might prove important in other commerce-power cases, particularly cases not involving violent crime. As the Court noted, "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Id. at 614 (majority opinion) (emphasis added). The majority also declined to "adopt a categorical rule against aggregating the effects of any noneconomic activity" for analysis under the affecting-commerce prong of the commerce-power, id. at 613, thereby giving the Court "room to give weight to the presence or absence of legislative findings in some future commerce power cases," Coenen, supra note 11, at 1322.
64. 521 U.S. 844(1997).
65. See id. at 870-71.
66. Id. at 871.
67. Id. at 879.
68. Sable Commc'ns of Ca., Inc. v. FCC, 492 U.S. 115, 129 (1989). Something like the flipside of this reasoning played a role in Justice Kennedy's concurring opinion in Ashcroft v. ACLU (Ashcroft I), 535 U.S. 564, 591 (2002) (Kennedy, J., concurring). There, four members of the Court voted to uphold more limited Internet-pornography legislation passed in the wake of Reno v. ACLU. Id. at 566. In his critical, fifth-vote concurring opinion, Justice Kennedy observed, Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have considerable merit, the Judiciary must proceed with caution and identify overbreadth with care before invalidating the Act. Id. at 591-92 (Kennedy, J., concurring). Notwithstanding its rejection of an overbreadth challenge in Ashcroft I, the Court later, in Ashcroft v. ACLU (Ashcroft II), 542 U.S. 656 (2004), upheld a U.S. district court's preliminary injunction of the Act based on findings that a less restrictive alternative, in the form of parental installation of filtering software, remained available. In dissent, Justice Breyer asked pointedly, "[W]hat has happened to the 'constructive discourse between our courts and our legislatures' that 'is an integral and admirable part of the constitutional design'?" Id. at 689 (Breyer, J., dissenting) (quoting Blakely v. Washington, 542 U.S. 296, 326 (2004)). As Justice Breyer elaborated, "Congress read Reno with care. It dedicated itself to the task of drafting a statute that would meet each and every criticism of the predecessor statute that this Court set forth in Reno.... What else was Congress supposed to do?" Id. at 690.
69. See Coenen, supra note 7, at 1738 (discussing cases).
70. Id. at 1642. See generally id. at 1640-55 (discussing use of form-based rules to foster deliberative policymaking).
71. For some additional rules of this nature, see Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 109-14 (2005) (holding that application of rules designed to protect sovereignty of Native American tribes hinges on whether "legal incidence" of state sales-related fuel tax, as revealed by statutory phrasing, falls on off-reservation distribution, rather than on-reservation purchases), and Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450, 460 (1995) ("[I]f a State is unable to enforce a tax because the legal incidence of the impost is on Indians or Indian tribes, the State generally is free to amend its law to shift the tax's legal incidence.").
72. Pelican Chapter, Associated Builders & Contractors, Inc. v. Edwards, 901 F. Supp. 1125, 1137 (M.D. La. 1995). Another sort of "how" rule is the "thoughtful treatment of the area" rule. Coenen, supra note 7, at 1727-34 (discussing thoughtful-treatment rules with regard to death penalty, speech-licensing, vagueness, and punitive-damages law). For one example, see Sklansky, supra note 25, at 1275-76 (noting that "[i]n a few limited areas, the Court has indicated that searches and seizures may satisfy the Fourth Amendment in part because they are carried out pursuant to formal regulations" and discussing inventory and administrative searches as examples).
73. 426 U.S. 229 (1976).
74. Id. at 242.
75. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 59-60 (1985) (invalidating required meditation in schools because of improper purpose); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971).
76. See supra notes 12-15 and accompanying text.
77. See Coenen, supra note 7, at 1759-61.
78. See id. at 1761 & nn.786 & 788.
79. See Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 SUP. CT. REV.95, 115 (noting that purpose-based doctrines permit reenactment of law "in identical form"); J. Morris Clark, Legislative Motivation and Fundamental Rights in Constitutional Law, 15 SAN DIEGOL. REV.953,1033 (1978) (same).
80. 471 U.S. 222 (1985).
81. Id. at 223.
82. Id. at 233.
83. Id.
84. See infra notes 283-84 and accompanying text.
85. See, e.g., GUIDO CALABRESI,A COMMON LAW FOR THE AGE OF STATUTES135 (photo, reprint 1999) (1982) ("[I]t is possible that a code can become so out of phase with everything else in the law that a forced legislative reconsideration becomes appropriate.").
86. See Coenen, supra note 7, at 1698-726 (analyzing judicial use of time-driven second-look rules when evaluating regulations that "raise particularly serious constitutional concerns").
87. 381 U.S. 479 (1965).
88. See Tribe, supra note 21, at 298-303 (discussing this aspect of Griswold).
89. Griswold, 381 U.S. at 505 (White, J., concurring).
90. For another case of this sort, see Cleveland Board of Education v. LaFleur, 414 U.S. 632, 641 n.9 (1974) (invalidating ban on teaching by women who were more than four months pregnant where the rule's defenders did not contend that its original purpose of shielding schoolchildren from visibly pregnant women could support the challenged policy in the present day).
91. BICKEL,supra note 8, at 148.
92. See Coenen, supra note 7, at 1704-08.
93. See, e.g., Samuel Estreicher, Judicial Nullification: Guido Calabresi's Uncommon Common Law for a Statutory Age, 57 N.Y.U. L. REV.1126,1132 n.14 (1982).
94. 539 U.S. 558 (2003).
95. CASSR. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA97 (2005) (footnote omitted); see also Sunstein, supra note 23, at 68 (asserting that the Court's earlier sodomy case, Bowers v. Hardwick, 478 U.S. 186 (1986), "should have been decided ... the other way and very narrowly-as a case involving the old and nicely minimalist idea, with democratic foundations, of desuetude").
96. BICKEL,supra note 8, at 148.
97. A related time-tied style of judicial intervention is illustrated by the Court's death penalty decisions. In particular, when the Court invalidated every death penalty statute in the nation in Furman v. Georgia, 408 U.S. 238 (1972), it did so in light of "evolving standards of decency" as required by the Eighth Amendment. Id. at 242 (Douglas, J., concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). This result, however, triggered a widespread reexamination of the death penalty, culminating in its reenactment in many states and the Court's upholding of that action in Gregg v. Georgia, 428 U.S. 153 (1976).
98. Quill v. Vacco, 80 F.3d 716, 732, 735 (2d Cir. 1996) (Calabresi, J., concurring), rev'd, 521 U.S. 793 (1997).
99. Id. at 732.
100. Washington v. Glucksberg, 521 U.S. 702 (1997).
101. Id. at 716 (emphasis added).
102. Id. at 716-17.
103. For a twist on the typical application of "when" rules, see Nickolaί G. Levin, Constitutional Statutory Synthesis, 54 ALA.L. REV.1281 (2003) (arguing that applications of statutes should change as constitutional doctrine changes, without necessitating judicial negation of such statutes).
104. See supra notes 16-20 and accompanying text.
105. 426 U.S. 88(1976).
106. Id. at 116-17.
107. Id. at 104.
108. Id. at 105.
109. Id. at 114.
110. Id. "Who" rules sometimes come to the fore in joint operation with other semisubstantive doctrines. In Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), for example, the Court noted its view that an administrative interpretation of a statute that comes too close to the outer bounds of congressional power would require a clear indication from Congress that such a result was intended. Id. at 172; see supra notes 33-42 and accompanying text. Although the Court in Solid Waste Agency thus protected federalism values by relying on a clear-statement "how" rule, it did so in a way that effectively shifted policymaking authority from one set of decision makers (that is, an executive agency) to another (that is, Congress).
111. 438 U.S. 265 (1978).
112. Id. at 307-10.
113. Id. at 309.
114. Id.
115. Exec. Order No. 11,935, 5 C.F.R. § 7.3 (2008).
116. See, e.g., Mow Sun Wong v. Campbell, 626 F.2d 739, 746 (9th Cir. 1980); Vergara v. Hampton, 581 F.2d 1281,1287 (7th Cir. 1978).
117. See supra notes 45, 56-57 and accompanying text.
118. See supra notes 27-30 and accompanying text.
119. In an earlier article, I identified most of these critiques in an abbreviated form. See Coenen, supra note 7, at 1845-50. In a responsive essay, Professor Tushnet observed that "a more complete understanding of [these] doctrines will require us to grapple with... objections that Professor Coenen mentions largely in passing." Tushnet, supra note 27, at 1872. Professor Tushnet was right. Hence, this Article.
120. I note, however, that those respects are significant. In particular, I give focused attention to both constitutional "who" rules and semisubstantive findings-and-study rules in assessing Argument 9. See infra notes 299-328 and accompanying text. It also bears emphasis that some semisubstantive doctrines cut across different substantive areas of constitutional law. Legislative-findings rules, for example, have surfaced in cases involving the First Amendment, the Equal Protection Clause, the commerce power, and the Fourteenth Amendment enforcement power. See Frickey & Smith, supra note 11, at 1718-27. It is always open to debate whether such rules should apply in some substantive contexts, but not in others.
121. It bears emphasis, in this regard, that the courts have invalidated many legislative acts on the ground that those acts do not comport with so-called "substantive due process." See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846-47 (1992) ('"[I]t is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure.'" (quoting Whitney v. California, 274 U.S. 357, 373 (1927) (Brandeis, J., concurring))); Eisenstadt v. Baird, 405 U.S. 438, 467 (1972) (Burger, C.J., dissenting) (disagreeing with the majority's decision as one harkening back to the days of "substantive due process"). Yet, if the Due Process Clauses impose substantive restraints on legislative behavior, should it not follow a fortiori that-at least with highly sensitive constitutional settings-they impose process-based limits as well? See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 550 (1980) (Stevens, J., dissenting) ("I see no reason why the character of [congressional] procedures may not be considered relevant to the decision whether the legislative product has caused a deprivation of liberty or property without due process of law."); Goldfeld, supra note 25, at 393 (relying on Due Process Clauses for procedural safeguards embedded in study-and-fíndings rules); see also Mich. Cent. R.R. v. Powers, 201 U.S. 245, 294 (1906) (leaving as an open question, with who-rule dimension, whether grant of legislative power to the executive or judiciary would "work ... a denial of due process").
122. See, e.g., Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,445 (1915) (suggesting that due process protections may not apply to legislative actions); see also Mark S. Kende, Comment, Principles of Competence: The Ability of Public Institutions to Adopt Remedial Affirmative Action Plans, 53 U. CHI. L. REV.581, 607 (1986) (noting the distinction between legislative and adjudicative actions with respect to due process requirements).
123. But see Mark Tushnet, Alternative Forms of Judicial Review, 101 MICH.L. REV.2781, 2796 (2003) (questioning the basis for deciding which substantive values are '"distinctively deserving of [the] judicial protection'" of provisional review (quoting Coenen, supra note 11, at 1283)).
124. 521 U.S. 844 (1997); see also supra notes 64-68 and accompanying text.
125. 381 U.S. 479 (1965); see also supra notes 87-90 and accompanying text.
126. 438 U.S. 265 (1978); see also supra notes 111-14 and accompanying text.
127. See, e.g., Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678-79 (1992) (discussing forum-based approach in analyzing speech restrictions).
128. See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992) (discussing total deprivation of economic use as taking); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124-28 (1978) (discussing factors to consider when determining whether just compensation is due for regulatory taking when no per se taking is present).
129. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40 (1985) (explaining levels of scrutiny applicable to equal protection challenges).
130. See David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI.L. REV.190 (1988) (discussing use of prophylactic rules in constitutional law, including in First Amendment and equal protection contexts).
131. See LAURENCEH. TRIBE, AMERICAN CONSTITUTIONAL LAW§ 12-26, at 1011-15, § 15-9, at 1329-32, §§ 16-5 to 16-13, at 1451-66 (2d ed., 1988) (discussing strict scrutiny as applied to freedom of association, rights of privacy and personhood, and as a tier of equal protection review).
132. Ashcroñ v. ACLU, 542 U.S. 656, 661 (2004) (noting that the Court had previously held the Communications Decency Act (CDA) unconstitutional in Reno v. ACLU, 521 U.S. 844 (1997), "because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available").
133. Reno, 521 U.S. at 871 (questioning whether CDA had been "carefully tailored to the congressional goal of protecting minors from potentially harmful materials").
134. The rhetoric of several equal-protection cases dovetails with this conclusion. See, e.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725-26 (1982) (reasoning that the purpose of heightened scrutiny is to foster "reasoned analysis"); Califano v. Goldfarb, 430 U.S. 199, 214 (1977) (invalidating a law that discriminated on the basis of sex when "nothing ... suggest[ed] a reasoned congressional judgment" was made).
135. See U.S. CONST,art. I, § 3, cl. 6 (impeachment); id. art. II, § 2, cl. 2 (treaties); see also Bryant & Simeone, supra note 30, at 380 (suggesting that the Speech or Debate Clause may "preclude judicial supervision of congressional proceedings"); Buzbee & Schapiro, supra note 11, at 151 ("Nothing in the Constitution dictates the sources of information that legislators may consider in drafting and voting on legislation."); Frickey & Smith, supra note 11, at 1744 (noting that "[t]he Constitution does not . . . specify any process" for legislative decision making).
136. quot;[T]o express or include one thing implies the exclusion of the other." BLACK'S LAW DICTIONARY620 (8th ed. 2004); see also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (discussing interaction of the expressio unius principle and the Qualifications Clause).
137. See supra notes 58-63 and accompanying text.
138. United States v. Lopez, 2 F.3d 1342, 1363-64 (5th Cir. 1993), aff'd, 514 U.S. 549 (1995); see also David S. Bogen, The Hunting of the Shark: An Inquiry into the Limits of Congressional Power Under the Commerce Clause, 8 WAKE FOREST L. REV. 187, 198 (1972) (anticipating and arguing for such a findings requirement "where the relationship of the law to interstate commerce is not readily apparent," and reasoning that this requirement "could assist in focusing Congressional concern on the proper issues"). Indeed, the text of the U.S. Constitution itself provides some basis for reaching the same conclusion. The law in Lopez, and others like it, after all, can be constitutional only if they are "necessary and proper for carrying into [e]xecution" the commerce power. U.S. CONST,art. I, § 8, cl. 18. It is not self-evident that a law-and particularly a law that bears no plain relation to commerce-constitutes a "proper" exercise of the commerce power when Congress itself has not identified the connection to commerce on which its assertion of authority purportedly rests.
139. 521 U.S. 844 (1997) (discussed supra notes 64-67 and accompanying text).
140. Another text-based critique of subjecting Congress to semisubstantive rules directed at federal lawmakers (or at least to some of these rules) stems from the Constitution's injunction that "Each House may determine the Rules of its Proceedings." U.S. CONST,art. I, § 5, cl. 2. As Professors Christopher Bryant and Timothy Simeone have written, "[t]he Supreme Court has long read the Rules and Journal Clauses as providing Congress broad discretion to determine how to report and record its consideration of proposed legislation." Bryant & Simeone, supra note 30, at 376; see also Goldfeld, supra note 25, at 417 (noting, but rejecting, this argument); cf Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI.L. REV.361, 366 (2004) (describing the Rules of Proceedings Clause as "in effect, a delegation of rule-designing authority from constitutional framers in the initial period to legislators in subsequent periods"). The answer to this suggestion is that Congress's rulemaking powers, like all of its powers, are limited by the Bill of Rights and other applicable constitutional inhibitions. What if, for example, the House issued a "rule" for its "proceedings" that barred speeches from the floor except when made by white, protestant males in support of policies favored by the President? This rule would be invalid because it offends constitutional inhibitions on government conduct that trump the rule-making power. By symmetry of logic, if there are constitutional inhibitions that, in specified areas, mandate semisubstantive doctrines, then those inhibitions must limit the rulemaking power as well. Just as surely as the "plenary" commerce power, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 197 (1824), is hemmed in by constitutional limitations derived from outside Article I, Section 8, so too the congressional rulemaking power is hemmed in by constitutional limits that spring from sources outside Article I, Section 5.
141. THE FEDERALISTNo. 81, at 543 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
142. THE FEDERALISTNo. 78 (Alexander Hamilton), supra note 141, at 528.
143. See infra notes 152-54,191, 333 and accompanying text.
144. THE FEDERALIST NO.71 (Alexander Hamilton), supra note 141, at 482. The words "passion" and "passions" appear in The Federalist sixty-six times and never in a complimentary light. THE FEDERALIST C ONCORDANCE390-91 (Thomas S. Engeman et al. eds., 1988).
145. THE FEDERALISTNo. 71 (Alexander Hamilton), supra note 141,at 482.
146. Id. at 482-83.
147. THE FEDERALISTNo. 78 (Alexander Hamilton), supra note 141, at 527.
148. Id.
149. Id.
150. THE FEDERALIST NO.73 (Alexander Hamilton), supra note 141, at 495. Some commentators have reflected on these passages in ways that lend support to semisubstantive rules. In particular, such
151. For an early example of this style of extrapolation-based decision making, see Ex parte Craig, 6 F. Cas. 710, 710-11 (C.C.E.D. Pa. 1827) (No. 3321) (Washington, Circuit J.) (rejecting governmental power to seize money from accused counterfeiter because of risk that resulting lack of funds would interfere with the accused's ability to exercise Sixth Amendment rights to counsel and to secure witnesses).
152. S. (4 Wheat.) 316 (1819).
153. Id. at 426.
154. See supra note 69 and accompanying text.
155. Cass R. Sunstein, Fighting for the Supreme Court: How Right-Wing Judges Are Transforming the Constitution, HARPER'S MAG.,Sept. 1, 2005, at 31, 36. Professor Sunstein might add that if originalism itself is not reflected in the Constitution's text, then it has legitimacy only if it can be properly extrapolated from extratextual premises and values. But if originalism is properly extrapolated from extratextual premises and values, then why not semisubstantive doctrines? In particular, why should courts not find merit in such doctrines given the deep original commitment to deliberative republican decision making that these doctrines seek to foster? See supra notes 143-50 and accompanying text.
156. Robert H. Bork, Slouching Towards Miers, WALL ST. J., Oct. 19,2005, at A12.
157. See infra notes 326-28 and accompanying text.
158. In any event, even if use of semisubstantive rules somehow threatens the value of democratic self-government, it certainly does so no more than the many hard-and-fast rules of constitutional law triggered by the originalist method. This is all the more true because even leading originalists acknowledge that their methodology will not provide clear answers in many cases because judges must inevitably extract from historical materials "the principles the ratifiers understood themselves" and then "apply those principles to unforeseen circumstances." Bork, supra note 156. One difficulty is that constitutional "principles" can be identified at many levels of generality. Critics of originalism say, for example, that originalists must reject the Court's canonical decision in Brown v. Board of Education because the ratifiers of the Fourteenth Amendment had no intention to end school segregation. See SUNSTEIN,supra note 95, at 64. Some originalists respond by saying that those ratifiers simultaneously embraced the broader goal of achieving racial equality and that this more general goal should not be defeated by embracing a subprinciple that permits school segregation. See ROBERTH. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW81-82 (1990). This response, of course, illustrates the need for the exercise of judicial judgment in defining constitutional principles and in determining how clashing principles are to be reconciled. No less important, applying originalist principles to unforeseen conditions is in its nature a judgment-laden business. (If, for example, the Fourteenth Amendment, in keeping with its text, embodies a principle of equality that extends beyond race discrimination, might it not be that that principle should outlaw government discrimination based on sexual orientation if "unforeseen conditions" suggest mat sexual orientation, like race, is genetically determined?) In short, originalist decision making permits judges to displace many programs implemented by democratically chosen decision makers through the exercise of judicial translation. See, e.g., Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding that government use of modern heat-sensing to gather information within a home is a search within the meaning of the Fourth Amendment). For this reason, the originalist methodology carries its own threat of judicial innovation and countermajoritarian results. And because originalist rulings are often hard-and-fast, the innovations and results that originalism triggers may well have more antidemocratic effects than outcomes produced by semisubstantive rules.
159. As Professor Burt Neubome has observed, While critics of process-based review have correctly noted that the judiciary, in identifying the required process, makes covert value judgments only slightly less profound than those more openly expressed by substantive-review courts, genuine process-based judicial review nonetheless poses a lesser challenge to democratic political theory. To the extent that process-based review requires normative judgments, they are prior judgments about who should make a choice and how it should be made, rather than the ad hoc substitution of a judge's substantive choices for those of the majority. Additionally, in many-perhaps most-settings, the impact of process-based review will be merely to remand an issue to one or another democratic forum for reconsideration in a procedurally correct manner. As such, it casts a suspensive veto that slows, but does not derail, majority will. Burt Neuborne, Judicial Review and Separation of Powers in France and the United States, 57 N.Y.U. L. REV.363, 366 (1982); see also Calabresi, supra note 21, at 136 ("Requiring a second look would not... amount to imposing the judge's elite moral values on the polity - In reality the only values imposed are constitutionally grounded ones that... require the legislature to speak openly and thoughtfully when rights are at stake."); Harry H. Wellington, The Nature of Judicial Review, 91 YALEL.J. 486, 505 (1982) ("Far from foreclosing legislative choices, therefore, these doctrines shape the process by which legislative goals may be achieved.").
160. Thompson v. Oklahoma, 487 U.S. 815, 874-78 (1988) (Scalia, J., dissenting).
161. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 521 (1965) (Black, J., dissenting) ("The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.").
162. See United States v. Lopez, 514 U.S. 549, 614 (1995) (Souter, J., dissenting) (criticizing the "legislative process requirement" in the Commerce Clause context that "would function... under standards never expressed and more or less arbitrarily applied").
163. See Thompson, 487 U.S. at 878 (Scalia, J., dissenting) (calling Justice O'Connor's approach a "Solomonic solution" but emphasizing that "Solomon . . . was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system"); see also Bryant & Simeone, supra note 30, at 392 (noting that certain semisubstantive approaches do not offer "judicially manageable standards" and offer "maximum flexibility for the Supreme Court... [that] would clearly be subject to judicial abuse").
164. See, e.g., New York v. Belton, 453 U.S. 454, 463 (1981) (Brennan J., dissenting) (claiming the majority is "formulating an arbitrary 'bright-line' rule" to deal with automobile searches); United States v. Chadwick, 433 U.S. 1,15 (1977) ("[T]he Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority.").
165. See, e.g., United States v. Arvizu, 534 U.S. 266, 273-76 (2002) (rejecting court of appeals' attempts to '"clearly delimit'" officers' consideration of factors in investigatory stop in favor of admittedly "abstract" totality-of-circumstances test (quoting United States v. Arvizu, 232 F.3d 1241,1248 (9th Cir. 2000))).
166. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring).
167. See THE FEDERALIST NO.78 (Alexander Hamilton), supra note 141, at 529 (describing the "considerable bulk" of judicial precedent that will have to be developed); see also David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 YALEL.J. 1717,1729 (2003) (asserting that "[t]o a large extent our constitutional law has ... becom[e] a common law system in which cases are decided on the basis of precedents").
168. See, e.g., Daniel A. Farber, Legal Pragmatism and the Constitution, 72 MINN. L. REV.1331,1332 (1988) (" Constitutional law needs no grand theoretical foundation. None is likely ever to be forthcoming, and none is desirable."); Stephen M. Griffin, Pluralism in Constitutional Interpretation, 72 TEX.L. REV.1753, 1766 (1994) ("What theory could possibly provide a persuasive and coherent rationale for the entire body of American constitutional law as well as provide persuasive guidance for all future cases?"); Paul E. McGreal, Ambition's Playground, 68 FORDHAML. REV.1107, 1108 (2000) ("Indeed, a rejection of grand constitutional theory can be inferred from aspects of the Constitution's structure and history.").
169. See supra notes 34-42 and accompanying text (discussing Solid Waste Agency v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001)).
170. See Gregory v. Ashcroñ, 501 U.S. 452, 463-64 (1991). See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (asserting that primary check on Commerce Clause power should and does lie in the operation of the national political process).
171. See, e.g., ESKRIDGE, JR., ET AL.,supra note 33, at 352-55 (discussing interpretive canons favoring Native Americans).
172. See supra notes 80-84 and accompanying text (discussing Hunter v. Underwood, 471 U.S. 222 (1985)).
173. Thompson v. Oklahoma, 487 U.S. 815, 877 (1988) (Scalia, J., dissenting).
174. See Calabresi, supra note 21, at 105 n.71 (describing criticism of Professor Bickel for advocating a judicial role that would too often allow judges to use legislative remands).
175. See Bryant & Simeone, supra note 30, at 392 (stating semisubstantive rules "would clearly be subject to judicial abuse"); Buzbee & Schapiro, supra note 11, at 143 (attacking semisubstantive rules as a "mode of review that defies predictability, provides minimal guidance to future courts and litigants, and... places judges in the position of second-guessing judgments of the political branches"); Frickey & Smith, supra note 11, at 1723-26 (expressing concern about inability of Congress to anticipate the highly exacting findings-based rule of Garrett).
176. Thompson, 487 U.S. at 875-76.
177. Hunter, 471 U.S. 222; see also supra notes 80-84 and accompanying text.
178. 521 U.S. 844 (1997); see also supra notes 64-67 and accompanying text.
179. 492 U.S. 115 (1989); see also supra note 68 and accompanying text. Notably, Justice Scalia wrote separately in Sable Communications, Inc. v. FCC to emphasize that "[n]either due process nor the First Amendment requires legislation to be supported by committee reports, floor debates, or even consideration, but only by a vote." 492 U.S. at 133 (Scalia, J., concurring). No other member of the Court signed on to this disclaimer.
180. See Goldfeld, supra note 25, at 381 (conceding that "it would be foolish for a court to tell Congress that it must always hold at least one hour of floor debate for every proposal under consideration").
181. See WILLIAM SHAKESPEARE, HAMLET, PRINCE OF DENMARKact 2, sc. 2 ("[T]he play's the thing.").
182. Of course, Justice Scalia has been known to lament the lack of predictability in various areas of constitutional law. See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (collecting opinions criticizing the Lemon test). In general, however, his pleas have not carried the day. See, e.g., Mistretta v. United States, 488 U.S. 361,427 (1989) (Scalia, J., dissenting) (complaining that the Court was improvising "constitutional structure on the basis of currently perceived utility").
183. 514 U.S. 549 (1995).
184. Id. at 551; id. at 627-29 (Breyer, J., dissenting).
185. Id. at 566 (majority opinion).
186. 501 U.S. 452 (1991).
187. Id. at 461-63 ("This plain statement rule is... an acknowledgement that the States retain substantial sovereign powers under our constitutional scheme-These [alienage-discrimination] cases stand in recognition of the authority... of the States to determine qualifications of their most important government officials.").
188. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976).
189. Id. at 102-03 & 102 n.22.
190. See Ambach v. Norwick, 441 U.S. 68, 73-74 (1979) (permitting exclusion of aliens from position of public school teacher on political function grounds); Foley v. Connelίe, 435 U.S. 291, 298-99 (1978) (permitting exclusion of aliens from state police force under this same principle).
191. See, e.g., Wash. State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384-85 (2003) (discussing and applying noscitur a sociis and ejusdem generis); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (discussing maxim of expressio unius); United States v. Freeman, 44 U.S. (3 How.) 556, 564-65 (1845) (stating rule of in pari materia and explaining its use where legislative language is unclear).
192. See generally William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA.L. REV.1007 (1989) (exploring the role public values play in statutory interpretation); David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV.921, 921 n.l (1992) (collecting literature); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV.L. REV.405 (1989) (proposing a set of interpretive norms designed to promote goals of deliberative government).
193. See supra notes 129-34 and accompanying text.
194. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) (describing intermediate scrutiny for gender classifications).
195. See supra notes 124-34 and accompanying text.
196. 449 U.S. 166(1980).
197. See id. at 189-93 (Brennan, J., dissenting) (positing that challenged legislation was, among other things, supported by misstatements that were "frequent and unrebutted").
198. Id. at 175 (majority opinion) ("[T]he Court in cases involving social and economic benefits has consistently refused to invalidate on equal protection grounds legislation which it simply deemed unwise or unartfully drawn.").
199. Id. at 174-75.
200. THE FEDERALIST NO.10 (James Madison), supra note 141, at 62-65.
201. See, e.g., supra notes 39-42, 141-42, 169-70, 186-87 and accompanying text (discussing clear-statement rule designed to protect federalism values that otherwise might receive too little judicial protection).
202. See, e.g., supra notes 97, 115 and accompanying text (describing reactions to Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), and Furman v. Georgia, 408 U.S. 238 (1972)).
203. See, e.g., Kent Roach, Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures, 80 CANADIANB. REV.481, 532 (2001) (suggesting that a "dialogic approach" to constitutional decision making "diminishes perhaps to the point of evaporation" the tension between democracy and judicial review). Indeed, there is much to be said for just the opposite idea-namely, that semisubstantive rules serve a critical purpose by summoning political decision makers, and the people themselves, to participate actively in the elaboration of constitutional restraints. See, e.g., NEALDEVINS &Louis FISHER, THE DEMOCRATIC CONSTITUTION229 (2004) (arguing against judicial monopoly in constitutional interpretation on the ground that, under such a system, the people will not accept the authority of the Constitution or of judicial interpretations of it); id. at 237-38 (emphasizing value of colloquies with regard to constitutional meaning); Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX.L. REV.873, 926 (1987) ('"[D]ue process of lawmaking' has the potential to strengthen the democratic process.").
204. Thompson v. Oklahoma, 487 U.S. 815, 877 (1988) (Scalia, I, dissenting).
205. Id.
206. Id.
207. See, e.g., Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 848 (4th Cir. 1999), affd sub nom. United States v. Morrison, 529 U.S. 598 (2000) ("[A] judicial mandate that Congress construct a proper paper trail... [would] ill befit the dignity of the Legislature."); Bryant & Simeone, supra note 30, at 382 (noting that the "Court has held that judicial intrusion into congressional procedures is inconsistent with the constitutional commitment to legislative independence" even when faced with credible evidence of legislative abuse); see also Colker & Brudney, supra note 30, at 142 (arguing that new legislative record rules will create "combative relationship between Congress and the States"); Thomas S. Schrock & Robert C. Welsh, Reconsidering the Constitutional Common Law, 91 HARV.L. REV.1117, 1153 (1978) ("[T]he constitutional common law might well precipitate a clash of will between Congress and the Court. Far from reducing friction, the proposal seems calculated to increase it.").
208. See supra note 162 and accompanying text.
209. United States v. Lopez, 514 U.S. 549, 614 (1995) (Souter, J., dissenting); see also Goldfeld, supra note 25, at 370 (identifying "significant separation-of-powers concerns, as well as practical concerns about the consequences of subjecting the flexible lawmaking process to the rigid judicial process").
210. 10 U.S. (6 Cranch)87(1810).
211. Id. at 123. See generally 16A AM. JUR. 2D Constitutional Law § 194 (1998) ("[I]f a statute appears on its face to be constitutional and valid, courts will not inquire into the motives of the legislature, or influence brought to bear to secure enactment of a statute." (footnote omitted)).
212. Lynn v. Polk, 76 Tenn. 121,293 (1881).
213. 143 U.S. 649(1892).
214. The enrolled-bill rule, provides that an act ratified by the presiding officers of the legislature, approved by the [executive], and enrolled in the proper... office is conclusively presumed to have been properly passed, and such an act is not subject to impeachment by evidence outside the act as enrolled to show it was not passed in compliance with law. 73 AM. JUR. 2D Statutes § 44 (2001); see Field, 143 U.S. at 668-73 (holding that even if an enrolled bill omits portions of legislation actually passed by both houses of Congress, signature by the President and leaders of both houses renders the statute unimpeachable); Williams v. MacFeeley, 197 S.E. 225,228-29 (Ga. 1938) (applying rule); Commonwealth v. 111. Cent. R.R. Co., 170 S.W. 171, 172 (Ky. 1914) (same). Some jurisdictions follow a less restrictive but still deferential approach known as the "journal entry rule." Under this view the enrolled bill acts as prima facie evidence of the regular enactment, but the courts are permitted to have recourse to the legislative journals in order to ascertain whether the law has been passed in accordance with constitutional requirements. 73 AM. JUR. 2D Statutes § 43 (2001); see also, e.g., Amos v. Moseley, 77 So. 619,621 (Fla. 1917) (applying rule).
215. 491 U.S. 110(1989).
216. Id. at 127 n.6 (plurality opinion) (Scalia, J., joined by Rehnquist, C.J.).
217. In contrast, more general procedural requirements apply to all legislation. See United States v. Ballin, 144 U.S. 1, 4 (1892) (refusing to look behind legislative journals to determine whether speaker had properly counted quorum as reflected in journals); Field v. Clark, 143 U.S. 649, 669 (1892) (rejecting, on enrolled-bill principles, argument that statute that omitted a section actually passed by both houses of Congress did not become law by the President's signature).
218. See supra notes 32-116,123 and accompanying text.
219. See Brest, supra note 79, at 101 ("In Fletcher the question that the Court refused to ask was: what did the decisionmakers desire to achieve in terms of personal benefits (for example, lining their pockets) by the act of voting? The inquiry [in "why" rule cases] bears closer resemblance to the traditional search for legislative purpose as an aid to statutory interpretation: what effects did the decisionmakers desire to achieve by the operation of their decision? These inquiries differ functionally as well as formally, for the methods for proving corruption entail a judicial intrusion into the political processes that is largely absent in the latter inquiry.").
220. See, e.g., Bryant & Simeone, supra note 30, at 376-78 (pointing to Field as evidence that the Court has traditionally stayed clear of intruding into Congress's legislative process).
221. 17 U.S. (4 Wheat.) 316, 387 (1819) (suggesting recognition of a judicial duty to intervene when Congress invokes an enumerated power as a "pretext" to regulate local matters); see also Guinn v. United States, 238 U.S. 347, 367-68 (1915) (invalidating facially neutral law with regard to literacy tests on the ground that its purpose was to disenfranchise African Americans).
222. Coenen, supra note 7, at 1735-55; see also Henry P. Monaghan, The Supreme Court 1974 Term-Foreword: Constitutional Common Law, 89 HARV.L. REV.1, 3 (1975).
223. See supra notes 152-54 and accompanying text.
224. See, e.g., Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1851) (overturning pilotage penalty for foreign vessels). See generally supra notes 16-20.
225. See United States v. Fisher, 6 U.S. (2 Cranch) 358, 390 (1805) (Marshall, C.J.) ("[W]here fundamental principles are overthrown... the legislative intention must be expressed with irresistible clearness ....").
226. See Coenen, supra note 7, at 1709, 1721-26 (discussing time-tied second-look doctrines and constitutional sunset rules, including those discussed in Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934)).
227. ELY,supra note 8, at 74.
228. See INS v. Chadha, 462 U.S. 919, 954-55 (1983) (invalidating one-House congressional veto as noncompliant with Article I bicameralism and presentment requirements); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189-91 (1978) (refusing to find repeal of substantive legislation by subsequent appropriations legislation, and considering House and Senate rules declaring out of order any provision of appropriations legislation that changes existing law); Powell v. McCormack, 395 U.S. 486, 550 (1969) (holding that Congress used improper procedures to exclude a representative); Gojack v. United States, 384 U.S. 702, 706-12 (1966) (finding that subcommittee conducted a legislative investigation unauthorized by congressional rules); Christoffel v. United States, 338 U.S. 84, 87-88 (1949) (holding, in prosecution for perjury before House committee, that defendant could raise lack of quorum as a defense); see also Linde, supra note 21, at 248 ("The Supreme Court holds Congress to its own rules in the case of investigations."). State courts sometimes intervene on process-centered grounds as well-for example, by enforcing constitutional provisions that require laws to deal with only one subject. See, e.g., Dep't of Educ. v. Lewis, 416 So. 2d 455, 459 (Fla. 1982) (describing state constitutional requirement that certain appropriations laws contain provisions on no other subject). See generally Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASEW. RES.L. REV.695,722 n.144 (1996) ("The single-subject rule might seem mere formalism, but it could well have the useful effects of forcing the legislature to place unrelated issues in separate bills, rather than combine them for logrolling purposes."); Millard H. Ruud, "No Law Shall Embrace More than One Subject," 42 MINN.L. REV.389 (1958) (examining the single-subject rule).
229. Thompson v. Oklahoma, 487 U.S. 815, 877 (1988) (Scalia, J., dissenting).
230. Id. at 838 (plurality opinion).
231. See id. at 857-59 (O'Connor, J., concurring) (stating that this issue should be left to the legislature).
232. Id. at 876. (Scalia, J., dissenting).
233. Id. at 877; see Fullilove v. Klutznick, 448 U.S. 448, 551 (1980) (Stevens, J., dissenting) ("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 determination that the substance of the decision is not 'narrowly tailored to the achievement of that goal.'"); id. at 552 ("[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 issue of this kind obviously merits."); BICKEL,supra note 8, at 206 (describing semisubstantive interventions and other "passive devices ... as lesser rational alternatives to an otherwise unavoidable principled judgment. . . because they work relatively no binding interference with the democratic process"); Sheila Foster, Intent and Incoherence, 72 TUL.L. REV.1065, 1109 (1998) (deeming motive-based semisubstantive review '"intrinsically less intrusive than substantive judicial review'" (quoting Paul Brest, Reflections on Motive Review, 15 SAN DIEGOL. REV.1141, 1143 (1978))); Linde, supra note 21, at 243 ("It is far more cause for resentment to invalidate the substance of a policy that the politically accountable branches and their constituents support than to invalidate a lawmaking procedure that can be repeated correctly, yet we take substantive judicial review for granted."); see also Hampton v. Mow Sun Wong, 426 U.S. 88, 103 (1976) (skipping "substantive" equal protection inquiry because a "narrower inquiry discloses that essential procedures have not been followed").
234. Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 HARV.L. REV.1, 34-35 (1957).
235. See supra notes 7,24 and accompanying text.
236. TRIBE,supra note 131, § 17-3, at 1686;
237. see also Bryant & Simeone, supra note 30, at 391-92 (expressing concern over obviously value-laden judgments hidden behind so-called procedural semisubstantive rulings);
238. Buzbee & Schapiro, supra note 11, at 153 ("[J]udicial weighing of the adequacy of... legislative record... is vulnerable to politicized application.");
239. William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND.L. REV.593, 636-37 (1992) (noting "concern that the Court's new canons represent a form of judicial activism that is particularly questionable because it is backdoor" and that the Court may not have "avoided the countermajoritarian difficulty... [but] only deepened it by engaging in under-the-table constitutional lawmaking"); id. at 646 (fearing that "a lack of recognition and candor about what the Court has done recently with quasi-constitutional law has submerged a variety of hotly contestable normative and empirical issues" and expressing concern about "judicial modesty cloaking judicial activism");
240. Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CAL.L. REV.397, 449 (2005) ("[T]he use of the [avoidance] canon seems ripe for strategic judicial behavior based on the political environment at the time the Court is deciding."); id. at 446 (arguing that avoidance canon "does not promote judicial restraint");
241. Richard Neely, Obsolete Statutes, Structural Due Process, and the Power of Courts to Demand a Second Legislative Look, 131 U. PA.L. REV. 271, 281 (1982) (reviewing GUIDO CALABRESI,A COMMON LAW FOR THE AGE OF STATUTES(1982)) ("The primary objection then to a 'structural due process' review power is that the power will be used in an unprincipled way, by power-hungry judges, increasing in effect the junta-like component of American government.");
242. Tushnet, supra note 123, at 2792 (noting that provisional review may "degenerate into-or may be disguises for-strong-form review"). Related to concerns about judicial subterfuge is an argument that attacks the lack of fair notice offered by semisubstantive rules. Professors Philip P. Frickey and Steven S. Smith argue that "[t]he Court imposed these requirements retroactively ... when Congress had no notice of the necessity of generating a carefully crafted legislative history."
243. Frickey & Smith, supra note 11, at 1723. Focusing on Garrett, they note that, even though "the Court faced congressional findings of pervasive discrimination against the disabled and an elaborate legislative history recounting instances of such discrimination," it "applied to the legislative history a... shredding technique,... in which the evidence was examined in segmented fashion rather than for its cumulative impact." Id. at 1725-26. Worse yet, the Court would only accept evidence set forth in the official legislative history, id. at 1726, while declining to look at even a highly informative task force report that was drafted at the request of a House subcommittee, id. at 1735. In the same vein, Professors Ruth Colker and James Brudney fault the Court for requiring Congress to effectively use a "crystal ball." Colker & Brudney, supra note 30, at 85. The Justices' approach, they say, "effectively penalizes the enacting Congress for failing to create a detailed legislative record, even though such a record requirement could not reasonably have been anticipated at the moment of legislative deliberation and enactment." Id.;
244. see also Buzbee & Schapiro, supra note 11, at 133 (arguing that the Court's second-guessing of legislative procedural choices is "particularly pernicious due to its failure to provide guidance on what legislative modes would be found adequate"). At least three responses to these commentators are available: (1) they seem to overlook the fact that judicial invalidation of legislation often occurs pursuant to newly articulated constitutional rules, including when hard-and-fast judicial decision making occurs; (2) they may overstate fair notice concerns because Congress can always "play it safe" by anticipating serious process-based review (which, Congress-in light of Garrett-surely should and will do in the future when acting pursuant to its Fourteenth Amendment Section 5 power); and (3) these arguments do not seem to be directed at semisubstantive rules in general (or not even at legislative findings rules in general), but instead at only special applications of those rules, particularly in the Garrett case.
245. TUSHNET,supra note 27, at 211.
246. See ELY,supra note 8, at 47 ("Thus we are told that the Court's 'essentially antidemocratic character keeps it constantly in jeopardy of destruction': it knows 'that frequent judicial intervention in the political process would generate such widespread political reaction that the Court would be destroyed in its wake.'" (footnote omitted)).
247. TUSHNET,supra note 27, at 211; see Schrock & Welsh, supra note 207, at 1125 ("It is thus possible for a Court, animated by realism, to be constitutionally cautious but subconstitutionally activist, even adventurist"). Professors William Eskridge and Philip Frickey have made a related point in discussing clear-statement rules of statutory interpretation: Because the Court sees itself as using up political capital every time it invalidates a statute, it thinks twice about exercising judicial review. To the extent the Court does not see itself as being "on the spot" when it interprets statutes, it may believe it has more freedom to interpret statutes to thwart legislative expectations than it does to strike them down. Eskridge & Frickey, supra note 236, at 637.
248. See United States v. Lopez, 514 U.S. 549, 613-14 (1995) (Souter, J., dissenting) (identifying risk that findings requirements may be used as a "covert" form of merits-based review). Christine Bateup makes a related argument. She says that, even if judges act without manipulative intent, legislatures will often be unable to reinstate semisubstantively invalidated rules "in practice" because of intervening changes in "political equilibrium" or the "salience" of the issue presented. Bateup, supra note 23, at 1131; accord infra notes 249-51 and accompanying text. For this reason, she worries that these rules "entail unseen democratic costs." Bateup, supra note 23, at 1131. This argument, however, raises no appreciable cause for worry. After all, it seems erroneous to say that the judiciary's scuttling of a law raises a "countermajoritarian difficulty" when a current legislative majority in fact sees no need to reinstate it.
249. See, e.g., ROBERTS. SUMMERS & ROBERTA. HILLMAN, CONTRACT AND RELATED OBLIGATION: THEORY, DOCTRINE, AND PRACTICEA-3 (3d ed. 1997) ("We believe nearly all judges try to give their 'real' reasons when writing opinions."); Neil K. Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV.366, 397 (1984) (deeming it "an unestablished proposition" that "judges employed institutional considerations cynically" in Mow Sun Wong and other cases).
250. At the least, it is open to question that they are uniquely or distinctively subject to use in devious fashion to expand judicial power. See, e.g., Tribe, supra 21, at 284 n.47 ("It is worth noting that even rules mechanically applicable carry their own risks for concealing illegitimate bases for decision.").
251. Tribe, supra note 131, § 17-3, at 1686; see also Gerald Gunther, The Subtle Vices of the "Passive Virtues "-A Comment on Principle and Expediency in Judicial Review, 64 COLUM.L. REV.1, 8 (1964) ("[I]t is easy to misjudge or distort the impact of a Court pronouncement, and guesses about that impact are treacherous sources of precepts for Court behavior.").
252. 408 U.S. 238 (1972).
253. See, e.g., CALABRESI,supra note 85, at 201 n.41 ("The Furman decision was perceived by many to mean that no capital punishment statute ... would be constitutionally acceptable.").
254. See Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976). See generally
255. For example, recent partial-birth-abortion litigation has involved hotly contested issues regarding the constitutional right-to-choose principle first embraced in Roe v. Wade, 410 U.S. 113 (1973). In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court invalidated Nebraska's partial-birth abortion law. Id. at 936-38. In a concurring opinion, Justice O'Connor anticipated that legislatures could and would attempt to correct the deficiencies in the Nebraska statute, and there was no suggestion that she was engaging in any subterfuge when she made these remarks. See id. at 950-51 (O'Connor, J., concurring). In fact, Congress quickly responded to Stenberg by enacting a national partial-birth-abortion law, and the Court upheld this new legislation in part because Congress made new and explicit findings about whether there was any medical need for the outlawed procedure. See Gonzales v. Carhart, 550 U.S. 124, 165-66 (2007) (noting that Congress found medical consensus that the procedure was never medically necessary).
256. See supra note 115 and accompanying text.
257. See, e.g., Mark V. Tushnet, Legal Realism, Structural Review, and Prophecy, 8 U. DAYTONL. REV.809, 814 (1983) ("The Supreme Court is an enduring institution with a regularly changing membership."). The recent partial-birth-abortion decision, handed down after Justice Alito replaced Justice O'Connor, helps to illustrate the point. See supra note 247.
258. See Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV.587, 610 (1983) ("[T]he courts need to remember that confrontation with the policy-makers puts the delicate nature of the separation of powers to great stress.").
259. See id. ("[The] independent judiciary can remain that way only if the other branches accept the importance of its independence.").
260. BICKEL,supra note 8, at 111.
261. See id. at 112.
262. Id. at 183.
263. Id. at 127.
264. Id. at 159-61.
265. Id. at 147-56.
266. See generally Gunther, supra note 243.
267. Id. at 17. ,
268. Id. at 25; see id. at 21 ("Bickel invites ... risks by viewing narrow constitutional doctrines such as vagueness as essentially unprincipled means to avoid premature hardening of substantive constitutional limitations.").
269. Id. at 22-24.
270. Id. at 5-9.
271. Another, separate problem is that the great bulk of Professor Gerald Gunther's treatment of Bickelian doctrines dealt with matters of jurisdiction and justiciability. That treatment may well have merit. But it possesses not a molehill of relevance with regard to the separate subject of whether courts should use semisubstantive rules.
272. Gunther, supra note 243, at 21. For a discussion of the semisubstantive, attention-focusing role of the vagueness rule, see Coenen, supra note 7, at 1629-30,1795-800.
273. Gunther, supra note 243, at 20.
274. Id. at 21.
275. Id. at 15. In like fashion, Professor Gunther had no problem with clear-statement-based semisubstantive rules despite their remand-to-the- legislature qualities. After all, political leaders have traditionally legislated against the backdrop of constitutionally driven clear-statement rules, including the substantial-constitutional-question avoidance rule. In these circumstances, legislators were (and still are) on fair notice that statutes that approach the limits of constitutionality will receive a thorough judicial going-over. For this reason, according to Professor Gunther, so long as courts tie second-look rules to the genuine presence of ambiguity, critics cannot fault courts for engaging in "dangerous subterfuges," CALABRESI,supra note 85, at 20 (discussing Gunther's view), or "free-wheeling interventionism," Gunther, supra note 243, at 25.
276. CALABRESI,supra note 85, at 20.
277. Id. at 19-20 (quoting Gunther, supra note 243, at 25).
278. Id. at 19.
279. Id. at 17.
280. Id. at 20.
281. See generally id. at 1-3 (outlining overarching concerns that gave rise to the book).
282. Id. at 20.
283. Id. at 22-23. Indeed, eight of the nine doctrines of semisubstantive constitutional law have nothing to do with a statute's outdatedness. See supra note 22 (itemizing nine doctrines).
284. See supra notes 98-99 and accompanying text (discussing Quill v. Vacco, 80 F.3d 716, 732-35 (2d Cir. 1996) (Calabresi, J., concurring)). In particular, he warmly embraced constitutionally driven semisubstantive reasoning in voting to invalidate an assisted suicide ban enacted in "another age," long before the development of modern medicine and moral outlooks that bear upon the subject. Id. at 732. As he explained, When legislation comes close to violating fundamental substantive constitutional rights or to running counter to the requirements of Equal Protection,... there is... a long tradition of constitutional holdings that inertia will not do. In such instances, courts have asserted the right to strike down statutes and, before ruling on the ultimate validity of that legislation, to demand a present and positive acknowledgment of the values that the legislators wish to further through the legislation in issue. Id. at 735 (emphasis added). In short, Judge Guido Calabresi himself came to embrace the use of time-tied rules, at least in this instance, as a vehicle for protecting substantive constitutional values.
285. TUSHNET,supra note 27, at 211; see also Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 224 (1949) ("[A] judiciary must judge by results, not by the varied factors which may have determined legislators' votes.").
286. U.S. CONST,amend. V; id. amend. XIV, § 1 (emphasis added); see also supra note 21.
287. In public official defamation cases, for example, many procedural rules serve to protect First Amendment values. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986) (holding that on motion for summary judgment, lower courts must inquire into convincing clarity of actual malice); Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986) (noting plaintiff has burden of proof in cases governed by New York Times Co. v. Sullivan, 376 U.S. 254 (1964), or Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500-03 (1984) (requiring appellate courts to review de novo whether evidence of actual malice was clear and convincing); N.Y. Times Co., 376 U.S. at 279-80 (evidence must show statement was made with actual malice).
288. TUSHNET,supra note 27, at 211.
289. Palmer v. Thompson, 403 U.S. 217, 225 (1971) (noting that there exists an "element of futility" in a motive based invalidation of a law).
290. Theodore Eisenberg, Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication, 52 N.Y.U. L. REV.36,116 (1977).
291. Farber & Frickey, supra note 203, at 918 n.253 (arguing that "merely shifting the burden of inertia in the policymaking process itself can be significant" because proponents of the invalidated law must bear the burden of lobbying Congress; because it is easier to defeat legislation than obtain its passage, a remand to Congress "may as a practical matter result in a policy's ultimate demise"); see also ROBERTA. BURT, THE CONSTITUTION IN CONFLICT365 (1992) ("Legislation is always easier to block than to enact. . . . [T]his provides significant added protection to the party who stands to gain from legislative inaction.").
292. This point seems to answer any argument that interest group pressures all but ensure that "remanding an issue to the legislature... is futile because the mechanistic process of legislation eliminates the possibility of a thoughtful legislative response." Farber & Frickey, supra note 203, at 876. What is more, this is the case even if one deems interest-group pressures as decisive in the lawmaking process. Due to time's passage, a judicially ordered second look may protect constitutional values by mandating an affirmative override of them by a legislature whose members represent interests quite different from the interests represented by the members of the initially enacting legislature. Professors Daniel Farber and Philip P. Frickey make this point in forceful terms: To be sure, judicial invalidation under this approach constitutes only a suspensive veto. Yet even that shifts the burden of inertia to those seeking to reimpose the invalidated decision, highlights the perceived unfairness of the decision, and, because of the passage of time, often presents the issue to a legislature constituted somewhat differently from the one that made the original decision. Considering the ease of killing legislation and the difficulty of passing it, these consequences of a suspensive veto are significant. Id. at 923.
293. See, e.g., Ward, supra note 25, at 17-18 (arguing that political allies of the Court "will often have sufficient strength to deter elected officials from reversing a judicial decision that vindicates the Constitution, especially after a judicial decision signals a conflict of constitutional magnitude"). Judge Calabresi has expressed worry that second-look rulings may shape legislative behavior in negative ways. He supposes, for example, that some state legislators made post-Furman votes for the death penalty on the ground of political expediency because they assumed the courts would strike down any newly enacted law. CALABRESI, supra note 85, at 26-27. This concern, however, is speculative and probably overdrawn. In any event, the proper solution to this problem, if it exists, is not for judges to scrap semisubstantive rules altogether, but for legislators to act responsibly. If judges want a sober second look, they should tell legislators exactly that, and legislators in turn should not assume that judges do not mean what they say.
294. TUSHNET,supra note 27, at 1874 (noting strong possibility of law-reform effects worked by time-tied "when" rules).
295. See, e.g., BICKEL,supra note 8, at 166 ("The Court's action in remanding the issue to Congress [in Kent v. Dulles, 357 U.S. 116 (1958),] bore some fruit. Hearings and quite extensive consideration followed, and a relatively moderate and well-drawn bill passed the House. In the Senate there were hearings and a number of bills, but in the end no legislation, at least not yet."); Farber & Frickey, supra note 203, at 923-24 (noting President Eisenhower's failure to secure congressional reinstatement of travel ban struck down in Kent); cf. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALELJ. 331, 337, 377-78, 416 (1991) (noting the infrequency with which judicial interpretations of statutes are overridden by Congress). If further evidence of nonfutility is needed, it is supplied by the experience of other nations. See Bateup, supra note 23, at 1120 (suggesting that override power available to the legislative branch, under the Canadian Constitution, "has rarely been employed"); Ward, supra note 25, at 20 n.61 (agreeing that the legislative override in Canada "has not played a significant role" and collecting authorities).
296. See Hunter v. Underwood, 471 U.S. 222 (1985); supra notes 80-84 and accompanying text.
297. In City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989), the Court detected just such a risk, although three dissenters argued vigorously that they were wrong.
298. TRIBE,supra note 131, § 10-7, at 666.
299. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,172 (1951) (Frankfurter, J., concurring)).
300. See supra notes 281-87 and accompanying text.
301. See Calabresi, supra note 21, at 104 n.71 ("When he first described such a scheme of judicial review, Bickel was criticized for providing too narrow and conservative a role for the judiciary."); Goldfeld, supra note 25, at 391-92 ("[I]f due process of lawmaking was employed only where strict scrutiny otherwise applied, it might end up displacing substantive judicial review altogether."); Schrock & Welsh, supra note 207, at 1149 (noting "scruples about . . . possible devaluation of the Constitution" inherent in constitutional common law); cf. Bateup, supra note 23, at 1130 (expressing worry about the way in which semisubstantive rules and substantive rules of judicial decision making interact, particularly as to when courts should use one technique or the other).
302. See, e.g., Schrock & Welsh, supra note 207, at 1165 ("[S]ubconstitutionalizing rights places them on a less firm foundation, since a common law rule is reversible by Congress while a constitutional right is not."); see also Calabresi, supra note 21, at 135-36 ("I would avoid the application of [hard-and-fast] protections to even such popular, open-ended concepts as the 'right to privacy.'"); Sandalow, supra note 29, at 1190 (arguing that the perceived need to use judicial review to protect minorities should be tempered with an understanding that "the political process leading to [legislative] decisions contains prodigious internal safeguards for [minorities'] interests," particularly in the "effect upon the political process of the extraordinary variety of interest groups... and the crosscutting loyalties and identifications that exist among the members of such groups"). Professors William Buzbee and Robert Schapiro argue that the Court "should take responsibility for the decision and not attempt to shift the blame to Congress" by using semisubstantive rules. Buzbee & Schapiro, supra note 11, at 143; see also Bryant & Simeone, supra note 30, at 375 (arguing that the Court has a duty to strike an unconstitutional statute and "may not properly avoid this responsibility by conditioning its adherence to the statute on congressional compliance with procedural requirements beyond those set forth in Article I, Section 7").
303. See, e.g., Calabresi, supra note 21, at 135 (noting that there is "consensus over the propriety of [hard-and-fast] protection for certain categories of rights," including "at least... most of the enumerated rights").
304. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (striking down Texas sodomy law on substantive due process grounds); United States v. Morrison, 529 U.S. 598, 609-19 (2000) (invalidating federal sex-based violence law on federalism grounds even though states widely supported it and Congress made extensive findings designed to show effects on interstate commerce); New York v. United States, 505 U.S. 144, 180-83 (1992) (rejecting defense of federal legislation that "commandeered" regulatory processes of New York, despite the involvement and support of state officials in the act's passage); Fed. Election Comm'n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263 (1986) (asserting, in striking down restrictions on speech not justified by a compelling state interest, that "we do not assume a legislative role, but fulfill our judicial duty-to enforce the demands of the Constitution").
305. See, e.g., Sunstein, supra note 192, at 468 (reasoning that courts may underenforce constitutional rights if only hard-and-fast review is available, but that courts can close the gap by engaging in aggressive statutory construction that vindicates constitutional norms); see also Richard A. Posner, The Supreme Court 2004 Term-Foreword: A Political Court, 119 HARV.L. REV.32, 89 (2005) (noting in his discussion on the significance of constitutional amendment processes that "[j]ust as dogs bark more ferociously when they are behind a fence, judges indulge their personal views more blatantly when they know they don't have the last word").
306. See, e.g., Conkle, supra note 29, at 52 ("[T]he Court would remain the 'ultimate interpreter of the Constitution'-indeed, a more powerful and effective interpreter, given the addition of a new and important jurisprudential tool that would supplement, not replace, the Court's traditional practice of final judicial review." (footnote omitted) (quoting Powell v. McCormack, 395 U.S. 486, 549 (1969); Baker v. Carr, 369 U.S. 186, 211 (1962))); see also Calabresi, supra note 21, at 103 (noting that even "Bickel did not, of course, believe in courts having only [a semisubstantive] function" but that he supported use of traditional hard-and-fast judicial review as well); cf. Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN.L. REV.29, 79 (1985) (arguing that the "original constitutional framework was based on an understanding that national representatives should be largely insulated from constituent pressures," and that, with the decline of that system, "it is neither surprising nor inappropriate that the judicial role has expanded [so] that some of the deliberative tasks no longer performed by national representatives have been transferred to the courts").
307. TUSHNET,supra note 27, at 207; see also supra notes 105-14 and accompanying text (discussing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)).
308. TUSHNET, supra note 27, at 206 (emphasis added).
309. Id. at 207.
310. Id.
311. Id.
312. Id. at 207-08.
313. Farber & Frickey, supra note 203, at 900.
314. TUSHNET,supra note 27, at 207.
315. Id. at 207 n.48.
316. See Coenen, supra note 11, at 1371-75 (discussing frequency with which the Rehnquist Court has shown openness to applying "'who'" rules).
317. TUSHNET,supra note 27, at 206.
318. See supra notes 9-11 and accompanying text.
319. See, e.g., Bryant & Simeone, supra note 30, at 332-39, 383-86 (noting that formal legislative record does not reveal proper reliance upon informal and extrarecord sources such as views of constituents, ex parte communications with interest groups, and information gathered by congressional agencies); Buzbee & Schapiro, supra note 11, at 96 ("No set of compiled written materials will provide a comprehensive record of what influenced legislative action."); Colker & Brudney, supra note 30, at 117 (asserting that semisubstantive rules "[fail] to appreciate the skill and sophistication that Congress brings" in legislation "through a range of informal contacts"). Of particular significance, Professor Frickey-who serves as something of a jedi-master in this field-has stepped back from his earlier optimism about findings-and-study rules to take a far more skeptical stance. Compare Frickey & Smith, supra note 11, at 1733-36 (listing a myriad of problems with findings-and-study rules), with Farber & Frickey, supra note 203, at 926 ('"[D]ue process of lawmaking' has the potential to strengthen the democratic process."); Frickey, supra note 228, at 697-98. For some less critical appraisals, see Barry Friedman, Legislative Findings and Judicial Signals: A Positive Political Reading of United States v. Lopez, 46 CASEW. RES.L. REV.757, 760 (1996) (suggesting that findings-and-study rules may "facilitate the exercise of judicial review and improve interbranch communication"); Harold J. Krent, Turning Congress into an Agency: The Propriety of Requiring Legislative Findings, 46 CASE W. RES.L. REV.731, 733-34 (1996) (noting the rule's potential to increase accountability and help in vindicating otherwise underenforced constitutional norms).
320. See Krent, supra note 311, at 746 ("Treating Congress as a glorified administrative agency cuts against our system of government, which embraces the norm of majoritarian rule through the democratic process."); see also Bryant & Simeone, supra note 30, at 331 ("[T]he reasons that justify Όn-the-record' review in the administrative [agency] context... do not apply to the legislative branch."); Buzbee & Schapiro, supra note 11, at 120 (arguing that legislative record review is similar to administrative action review, but even "more probing").
321. See Harold J. Krent, Reviewing Agency Action for Inconsistency with Prior Rules and Regulations, 72 CHI.-KENTL. REV.1187, 1187 (1997) (noting necessity of external monitoring, in light of bureaucrats' "lack of political accountability").
322. See, e.g., Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 97 (1977) (Stevens, I, dissenting) (justifying findings-and-study approach in part based on "the unfortunate fact that Congress is too busy to do all of its work as carefiilly as it should"); Goldfeld, supra note 25, at 370 (suggesting value of findings-based rule when "a particular policy did not receive even minimal deliberation," which can happen in legislative process, in part because of floor amendments).
323. See supra notes 58-68 and accompanying text. An ancillary argument in this context is that forcing Congress to create a substantive legislative record overlooks resulting opportunity costs; put another way, legislatures may have to forego valuable alternative activities because they have to adhere to the Court's findings-and-study rules. Bryant & Simeone, supra note 30, at 384 (asserting that "[b]y imposing on Congress the duty to create a record ... the Court threatens to limit the other legitimate purposes served by congressional proceedings" and that the Court's approach "will likely have the undesirable consequence of diverting scarce congressional resources"); Colker & Brudney, supra note 30, at 120 (arguing that "[r]edirecting Congress's way of doing business... imposes substantial opportunity costs"); see also Buzbee & Schapiro, supra note 11, at 135 (stating that, while the Court does "not prohibit... informal modes of communication and access,... by creating a requirement that the legislature establish a recorded factual basis for a legislative action, the Court has created incentives for a shift in emphasis... to more formal modes of deliberation"). One answer to this critique is that it seems unduly alarmist. The Court has not signaled that findings-centered review techniques will apply large numbers of legislative undertakings. Rather, all signs indicate that the Court has reserved this style of review only for cases that involve particularly sensitive constitutional issues. See supra notes 25,123 and accompanying text.
324. See, e.g., Frickey & Smith, supra note 11, at 1745 (asserting that "when conflict of interests is present and when policy is therefore constructed through a competitive process of coalition building, bargaining, and voting, the Court is asking too much" when it requires agency-like behavior of Congress).
325. See Sunstein, supra note 23, at 37 ("[C]ourts should provide spurs and prods when ... deliberation is absent.").
326. See Goldfeid, supra note 25, at 418 (noting that some groups question the use of legislative history in statutory interpretation "in part to minimize the influence of interest groups-because such groups are able to get language into legislative history that they are unable to get into statutory language").
327. Cf . Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV.575, 610-12 (2002) (suggesting that "lobbyist involvement [may] actually [be] a form of deliberation and participation").
328. See, e.g., Owen M. Fiss, The Supreme Court 1978 Term-Foreword: The Forms of Justice, 93 HARV.L. REV.1, 9-10 (1979) (emphasizing that legislatures "see their primary function in terms of registering the actual, occurrent preferences of the people-what they want and what they believe should be done"); Mikva, supra note 250, at 606 ("[F]or the most part the legislators are motivated by a desire to enact any particular piece of legislation that fills the perceived needs of the moment."); id. at 588 (adding that legislatures are not '"institutionally suited to search for the meaning of constitutional values'" (quoting Fiss, supra, at 10)).
329. Findings-and-study rules may serve other purposes as well. See, e.g., Goldfeid, supra note 25, at 369 ("[P]lacing a floor on the level of deliberation required to enact a law could help improve the quality of... political accountability."); see also supra note 203 (noting possible benefits of diminishing tensions between Congress and the courts and of enhancing the quality of judicial review by supplying useful information).
330. Sunstein, supra note 298, at 76 (claiming that, if representatives were forced to act in Madisonian mold, they would, at most, produce "'boilerplate'-rationalizations designed to placate the courts-rather than a genuine critical inquiry into issues of value and fact").
331. 1 THE COMPLETE ANTI-FEDERALIST61 (Herbert J. Storing ed., 1981) (quoting A Citizen, CARLISLE GAZETTE & WESTERN REPOSITORY OF KNOWLEDGE,Oct. 24, 1787); see also Vicki C Jackson, Federalism and the Uses and Limits of Law: Printz and Principle, 111 HARV.L. REV.2180, 2240 n.261 (1998) (noting that requiring Congress to gather facts, even absent a remand, "may lengthen time for deliberation"). See generally supra notes 143- 50 and accompanying text (discussing concerns about passionate, short-sighted action of political decision makers expressed in The Federalist).
332. See supra notes 11,14-15,19-20 and accompanying text.
333. This point was highlighted to me in informal communication with Professor (and former Oregon Supreme Court Justice) Hans Linde.
334. It is true, of course, that in some circumstances, "especially powerful justifications" will not exist, but that instead, reenactment of the same or a similar law will result from the exertion of raw political power of self-interest groups. Even in these cases, however, shifting the burden of inertia onto the backs of those groups will at least ensure that the law is reenacted in response to distinctively powerful democratic forces. And if no genuinely public-regarding justification for the law is identifiable, it remains open to courts to invalidate the law pursuant to due-process or equal-protection rationality review. See CASSR. SUNSTEIN, THE PARTIAL CONSTITUTION29 (3d ed. 1997) (describing rationality review as a requirement that "public measures must be a minimally reasonable effort to promote some public value").
335. See supra notes 143-50 and accompanying text (collecting passages on this point from The Federalist).
336. See supra notes 317-19 and accompanying text.
337. This Article does not stand alone in pointing out the deep historical tradition of semisubstantive rules. See BICKEL,supra note 8, at 70-71 (stating that "over the years, [the Court has] developed an almost inexhaustible arsenal of techniques and devices" that "engage the Court in a Socratic colloquy with the other institutions of government and with society as a whole concerning the necessity for this or that measure, for this or that compromise"). But see Bryant & Simeone, supra note 30, at 331, 369 (arguing that the Court's approach "is simply inconsistent with [its] own precedents" that have not been overruled).
338. See supra note 279.
339. See Coenen, supra note 7, at 1823-28 (developing this argument).
340. See supra notes 73-79 and accompanying text.
341. See United States v. Fisher, 6 U.S. (2 Cranch) 358, 390 (1805) ("[W]here fundamental principles are overthrown... the legislative intention must be expressed with irresistible clearness ....").
342. See supra notes 152-54, 224 and accompanying text (discussing Cooley v. Bd. of Wardens, 53 U.S. (12 How.) 299 (1851); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
343. See generally Coenen, supra note 11 (describing the Rehnquist Court's widespread use of semisubstantive review).
344. See ARISTOTLE, THE NICOMACHEAN ETHICS111 (H. Rackham trans., 1968) (stating "that moral virtue is a mean, and in what sense this is so, namely that it is a mean between two vices, one of excess and the other of defect; and that it is such a mean because it aims at hitting the middle point in feelings and in actions").