Rethinking the presumption of constitutionality

Notre Dame Law Review

Volumn 85, Issue 4, 2010, Pages 1447-1504

  Hessick, F Andrew ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 77956373199     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (468)

1. See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944);
2. see also Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring) (describing the decision to declare legislation unconstitutional as "the gravest and most delicate duty that this Court is called on to perform").
3. Examples of other self-imposed limitations include the doctrines of constitutional avoidance and of deciding cases on statutory grounds when possible, see Ash- wander v. Tenn. Valley Auth., 297 U.S. 288, 347-48 (1936) (Brandeis, J., concurring), and the refusal to consider constitutional arguments made by one to whom application of a statute is constitutional
4. see United States v. Raines, 362 U.S. 17, 21-22 (1960).
5. Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934) ("[I]f any state of facts reasonably can be conceived that would sustain [the challenged legislation], there is a presumption of the existence of that state of facts.").
6. 5 U.S. (1 Cranch) 137 (1803).
7. Id. at 177.
8. See United States v. Morrison, 529 U.S. 598, 616 n.7 (2000) ("It is a 'permanent and indispensable feature of our constitutional system' that 'the federal judiciary is supreme in the exposition of the law of the Constitution.
9. (quoting Miller v. Johnson, 515 U.S. 900, 922-23 (1995))).
10. For debate over whether courts should defer to legislative interpretations of the Constitution, compare, for example, JOHN HART ELY, DEMOCRACY AND DISTRUST 101-04 (1980) (discussing a judicial model that defers unless the lawmaking system is malfunctioning);
11. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of judicial Supremacy, 102 COLUM. L. REV. 237, 301-02 (2002) (noting how the Court consistently displaces congressional constitutional interpretation with its own);
12. Larry D. Kramer, The Supreme Court, 2000 Term-Foreword: We the Court, 115 HARV. L. REV. 5, 128-30 (2001) (discussing how the Rehnquist Court did not acknowledge congressional constitutional interpretation), with, for example
13. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION 224-69 (2004) (arguing that the current doctrine of presuming constitutionality violates the Ninth Amendment and should be replaced by "presumption of liberty" that protects all unenumerated rights equally);
14. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 HARV. L. REV. 1359, 1362-63 (1997) (discussing the concept of judicial nondeference); (Pubitemid 127437500)
15. Steven G. Calabresi, Thayer's Clear Mistake, 88 Nw. U. L. REV. 269, 275-77 (1993) (discussing the "departmentalist" system of multibranch interpretation of the Constitution);
16. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1274-79 (1996) (discussing the view that the Court's constitutional interpretation is arguably constrained by the political branches).
17. Although beyond the scope of this Article, similar arguments may apply to interpretations rendered by the executive branch in signing a bill into law.
18. THE FEDERALIST NO. 78, at 434 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
19. Id. at 435
20. Morrison, 529 U.S. at 607;
21. see also Brown v. Maryland, 25 U.S. (12 Wheat) 419, 436 (1827) (stating that "the presumption is in favour of every legislative act");
22. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810) (stating that a court may declare an act of a legislature unconstitutional only when "[t]he opposition between the constitution and the law [is] such that the judge feels a clear and strong conviction of their incompatibility with each other").
23. See Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85 CORNELL L. REV. 656, 665 (2000) ("Judicial deference acknowledges that, based on the interpretation of another branch of government, a court might arrive at a conclusion different from one it would otherwise reach.").
24. See Paul Horwitz, Three Faces of Deference, 83 NOTRE DAME L. REV. 1061,1072-78 (2008) (describing the different types of deference).
25. For each type of deference, the degree of deference that a court may afford also varies. Courts may defer absolutely, accepting another's decision without question. Or they may afford some lesser degree of deference, such as treating another'sdecision as a thumb on the scales
26. see, e.g., Skidmore v. Swift & Co., 323 U.S. 134, 140(1944) (treating agency interpretations as persuasive authority), or refusing to upset another's decision unless there is good reason to do so
27. see, e.g., Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45 (1984) (treating reasonableagency interpretations as binding).
28. Carissa Byrne Hessick & F. Andrew Hessick, Appellate Review of Sentencing Decisions, 60 ALA. L. REV. 1,14 (2008) ("De novo review is generally reserved for questions of law, and clear error review for factual findings."). One notable exception is that appellate courts review findings of fact in the First Amendment context de novo.
29. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 (1984) ("Judges must independendy decide whether the evidence in the record is sufficient to cross the constitutional threshold ").
30. See Gonzales v. Raich, 545 U.S. 1, 28-29 (2005) ("The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitied to a strong presumption of validity.");
31. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001) ("[T]he party challenging the statutory withholding scheme bears the burden of demonstrating its constitutionality."). Although the presumption ordinarily arises in the application of reasonableness tests, it is not limited to that context.Courts applied it to other fact-based tests for assessing the constitutionality of legislation.
32. See Henry Wolf, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 HARV. L. REV. 6, 21 (1924).
33. U.S. CONST, art. I,§ 8, cl. 18 (authorizing Congress "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States").
34. U.S. (4 Wheat.) 316 (1819).
35. Id. at 421 ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
36. See 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 8-3, at 1346 (3d ed. 2000) (describing the Lochner-e.ra Court's requirement of an actual justification in fact for economic regulations);
37. Wolf, supra note 16, at 6 ("[I]t must first be informed as to the truth of some question of fact which the statute postulates or with reference to which it is to be applied; and the validity of the legislation depends on the conclusions reached by the court with reference to this question of fact.").
38. See McCuUoch, 17 U.S. (4 Wheat.) at 423 (explaining that if Congress were, "under the pretext of executing its powers, [to] pass laws for the accomplishment of objects not entrusted to the government," those laws would be unconstitutional).
39. Thus, under McCuUoch, Congress could not enact legislation prohibiting the interstate sale of marijuana on the ground that marijuana is dangerous to health, because the protection of health is not justified by any power delegated to Congress.
40. See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) (stating that a law is constitutional "if there is any reasonably conceivable state of facts that could provide a rational basis" for its enactment);
41. Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934) (holding that "if any state of facts reasonably can be conceived that would sustain" the challenged legislation, then "there is a presumption of the existence of that state of facts"). Nor is it necessary that speculated facts provide a perfect justification for the statute. So long as the speculated facts justify a substantial portion of the coverage of the law, the courts will sustain the law as constitutional.
42. Flemming v. Nestor, 363 U.S. 603, 612 (1960) ("[I]t is irrelevant that the section does not extend to all to whom the postulated rationale might in logic apply.").
43. See Gonzales v. Raich, 545 U.S. 1, 32-33 (2005) (upholding Congress's regulation of the possession of marijuana).
44. Two examples illustrate the point. First, the Supreme Court has held that Article I authorizes Congress to impose taxes only for the reason of raising revenue, as opposed to as a means to regulate.
45. See Veazie Bank v. Fenno, 75 U.S. 533,541 (1869).But the Court has directed courts, in determining the constitutionality of tax legislation, not to examine the legislature's motives; instead, under the presumption of constitutionality, courts must assume that the tax law is enacted for the constitutionally valid purpose of raising revenue if it does in fact raise revenue.
46. See McCray v. United States, 195 U.S. 27, 54 (1904). Second, in Hemming, the Court invoked the presumption in considering whether a statute unconstitutionally imposed "punishment" without providing the protections of the Sixth Amendment.
47. Hemming, 363 U.S. at 617.The Court explained that a statutory disability constitutes a punishment only if its purpose is to target the individual, not to regulate an activity.
48. See id. The Court refused to read the statute as unconstitutionally imposing a punishment, stating that the presumption required the assumption that Congress enacted the statute to regulate activity.
49. See id.
50. See BENJAMIN R. TWISS, LAWYERS AND THE CONSTITUTION 196 (1942).
51. See, e.g., Lochner v. New York, 198 U.S. 45, 56-57 (1905) (addressing whether maximum-hour regulations for workers at bakeries reasonably promoted government interest of protecting public safety).
52. See Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 17 (1990) (stating that a court "must defer to a congressional finding that a regulated activity affects interstate commerce 'if there is any rational basis for such a finding'"
53. (quoting Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981)).
54. See, e.g., Vacco v. Quill, 521 U.S. 793, 799 (1997).
55. See Munn v. Illinois, 94 U.S. 113, 132 (1877) (stating that the Court "must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed").
56. See Walton H. Hamilton, The Jurist's Art, 31 COLUM. L. REV. 1073, 1074-75 (1931) (arguing that the presumption did not gain traction until the 1931 decision
57. O'Gorman & Young, Inc. v. Hartford Ftre Ins. Co, 282 U.S. 251 (1931).
58. See Lochner, 198 U.S. at 57 ("Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.").
59. Ruth Bader Ginsburg, Muller v. Oregon: One Hundred Years Later, 45 WILLAMETTE L. REV. 359, 361-65 (2009) (discussing how the factual detail in Brandeis's brief determined the outcome in
60. Muller v. Oregon, 208 U.S. 412 (1908).
61. Borden's Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934).
62. In Katzenbach v. Morgan, 384 U.S. 641 (1966), for example, the Court stated that the judiciary should defer to Congress's interpretation of Section 5 of the Fourteenth Amendment.
63. See id. at 648-49 (stating that the Fourteenth Amendment empowers Congress to abrogate more than "only those state laws that the judicial branch was prepared to adjudge unconstitutional").
64. But the Court abandoned that doctrine in City o/Boerne v. Flares, 521 U.S. 507, 529 (1997).
65. 358 U.S. 1 (1958).
66. See United States v. Morrison, 529 U.S. 598, 617 n.7 (2000) (describing the "Court" as "the ultimate expositor of the constitutional text");
67. Baker v. Carr, 369 U.S.186, 211 (1962) (stating that the Supreme Court is "ultimate interpreter of the Constitution");
68. Cooper, 358 U.S. at 18 (proclaiming "the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution");
69. see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000) ("The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch.");
70. City of Boerne, 521 U.S. at 529 (rejecting deference to legislative interpretations of the Constitution on the ground that "[s]hifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V").
71. See Barkow, supra note 7, at 302 ("[T]he unmistakable trend is toward a view that all constitutional questions are matters for independent judicial interpretation and that Congress has no special institutional advantage in answering aspects of particular questions.");
72. Kramer, supra note 7, at 129 ("[W]hat Congress thinks about the Constitution carries no formal legal weight in the eyes of the Rehnquist Court, and has only so much practical weight as the Justices think it deserves (which typically turns out to be not much).");
73. Richard A. Posner, The Supreme Court, 2004 Term- Foreword: A Political Court, 119 HARV. L. REV. 32, 56 (2005) ("Judicial modesty [i.e., deference to the legislature] is not the order of the day in the Supreme Court.").
74. See Michael C. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L.REV. 875, 892 (2003) (describing such a scheme).
75. See 1 WESTEL WILLOUGHBY, THE CONSTITUTIONAL LAW OF THE UNITED STATES 42 (2d ed. 1929).
76. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803);
77. see also Morrison, 529 U.S. at 616 n.7 ("[B]ut ever since Marbury this Court has remained the ultimate expositor of the constitutional text.");
78. Cooper, 358 U.S. at 18 (basing judicial supremacy on Marbury).
79. See Barkow, supranote 7, at 301;
80. Henry P. Monaghan, Marbury and the Administrative State, 83 COLUM. L. REV. 1, 9 (1983).
81. See David P. Currie, The Constitution in the Supreme Court: The Powers of the Federal Courts, 1801-1835, 49 U. CHI. L. REV. 646, 658 n.77 (1982) ("[I]t would be quite consistent with a judicial duty to declare the law to find that the law commits to Congress the decision whether it has acted within its powers.");
82. Monaghan, supra note 41, at 9.
83. U.S. (6 Cranch) 87 (1810).
84. Id. at 128;
85. accord Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 436 (1827) (stating that "the presumption is in favour of every legislative act").
86. Hylton v. United States, 3 U.S. (3 Dall.) 171, 173 (1796).
87. Cooper v. Telfair, 4 U.S. (4 Dall.) 14, 19 (1800).
88. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827).
89. Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518, 625 (1819) ("[T]his court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared, that, in no doubtful case, would it pronounce a legislative act to be contrary to the [C]onstitution.");
90. see also Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 615 (1899) ( "[A]n act of Congress should not be declared unconstitutional unless its repugnancy to the supreme law of the land is too clear to admit of dispute ");
91. Union Pac. R.R. v. United States, 99 U.S. 700, 718 (1879) (stating courts could not declare an act void "except in a clear case" and that "[e]very possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt").
92. See generally WILLIAM R. CASTO, THE SUPREME COURT IN THE EARLY REPUBLIC 222-27 (1995) (recounting these and other cases). State courts adopted a similar view in evaluating whether state laws passed muster under the federal their respective state constitutions.
93. See, e.g., Syndics of Brooks v. Weyman, 3 Mart, (o.s.) 9, 12 (La.1813) ("We reserve to ourselves the authority to declare null any legislative act which shall be repugnant to the constitution; but it must be manifestly so, not susceptible of doubt.");
94. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 24 Mass. (7 Pick.) 344,474 (1829) (stating that "acts of the legislature must be presumed to be constitutional, unless the contrary [construction] can be made very clearly to appear");
95. Ex parte McCollum, 1 Cow. 550, 564 (N.Y. Sup. Ct. 1823) ("[B]efore the Court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt.");
96. Commonwealth ex rel. O'Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811) ("It must be remembered however, that for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt.");
97. Byrne's Adm'rs v. Stewart's Adm'rs, 3 S.C. Eq. (3 Des. Eq.) 466, 476 (1812) ("[I]t is the duty of the legislators as well as of the Judges to consult this and conform their acts to it, so it ought to be presumed that all their acts are conformably to it, unless the contrary is manifest.");
98. Kemper v. Hawkins, 3 Va. (1 Va.Cas.) 20, 61 (1793) ("[T]he violation must be plain and clear, or there might be danger of the judiciary preventing the operation of laws, which might be productive of much public good.");
99. see also Dearborn v. Ames, 74 Mass. (8 Gray) 1, 21 (1857) (Thomas, J., concurring) ("I assent to the opinion expressed by the other justices, upon the single ground that the act is not so clearly unconstitutional, its invalidity so free from reasonable doubt, as to make it the duty of the judicial department, in view of the vast interests involved in the result, to declare it void.")
100. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 144 (1893) ("It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one.? so clear that it is not open to rational question.");
101. see also Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1224 (1978) ("Thayer's contribution was to draw together the threads of the rule's articulation and defense from a wide range of sources, and bestow on them his powerful endorsement."). Thayer's theory of deference influenced a number of important judges, including Holmes, Brandeis, Frankfurter, and Hand.
102. See Michael J.Gerhardt, Constitutional Humility, 76 U. CIN. L. REV. 23, 26 (2007).
103. Indeed, Justice Frankfurter called it the single most important constitutional law article ever published. FELIX FRANKFURTER, FELIX FRANKFURTER REMINISCES 299-301 (Harlan B. Phillips ed., 1960).
104. See Thayer, supra note 49, at 144.
105. See id. at 150 ("[T]he ultimate question is not what is the true meaning of the constitution, but whether legislation is sustainable or not.");
106. see also Sager, supra note 49, at 1223 (stating that Thayer's rule "is not founded on the idea that only manifestly abusive legislative enactments are unconstitutional, but rather on the idea that only such manifest error entitles a court to displace the prior constitutional ruling of the enacting legislature").
107. 60 U.S. (19 How.) 393 (1857).
108. In Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), for example, the Court struck down a state law because it violated the prohibition on states imposing imposts or duties on exports and conflicted with Congress's power regulate commerce. Although the Court said that there is a "presumption is in favour of every legislative act," the Court did not exhibit any deference to the state legislature.
109. Id. at 436.Instead, it declared the law unconstitutional based on its own assessment that the state law did not fall within the text or purpose of the prohibition on imposts and conflicted with Congress's commerce power.
110. See id. at 437-38, 449. Similarly, in the Dartmouth College case, after reciting the presumption of constitutionality, the Court struck down a state law seizing Dartmouth College based on its own independent assessment of whether a corporate charter fell within the contracts clause.
111. See Dartmouth Coll., 17 U.S. (4 Wheat.) at 629.
112. See, e.g., United States v. Gettysburg Elec. Ry. Co., 160 U.S. 668, 680 (1896) (invoking presumption of constitutionality in rejecting challenge to the federal government's condemnation of land);
113. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128-29 (1810) (invoking presumption of constitutionality in rejecting constitutional challenge to state law).
114. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 60 (1973) (Stewart, J., concurring) (equating Thayerian review with the presumption of constitutionality and the rational basis test);
115. see also I.A.M. Nat'l Pension Fund Benefit Plan C v. Stockton TRI Indus., 727 F.2d 1204,1211 n.21 (D.C. Cir. 1984) (describing Thayer's article as a "celebrated discussion of the presumption of constitutionality");
116. Bickel, supra note 42, at 37-39; Dorf, SUPRA note 38, at 892-95 (discussing the two ideas interchangeably as examples of "judicial restraint");
117. Kevin M. Stack, THE CONSTITUTIONAL FOUNDATIONS o/Chenery, 116 Yale LJ. 952, 967 n.63 (2007) (praising Thayer's "classic statement of the grounds for the presumption of constitutionality").
118. See Ruth Colker & James J. Brudney, DISSING CONGRESS, 100 Mich. L. Rev. 80, 87-105 (2001).
119. 514 U.S. 549 (1995).
120. see id. at 551.
121. See id. at 558-59.
122. See id. ("[P]ossession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce.");
123. see also id. at 562-63 ("Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce.").
124. See, e.g., id. at 623-24 (Breyer, J., dissenting) (arguing that the Commerce Clause could rationally be interpreted to authorize regulation of noneconomic activities). The Court similarly applied the presumption in Gonzales v. Raich. There, in determining that the Commerce Clause authorized Congress's ban on the possession of marijuana, the Court asked only whether any conceivable set of facts justified the law under the Court's interpretation of the Commerce Clause.
125. See Gonzales v. Raich, 545 U.S. 1, 19 (2005) ("Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions.").
126. Many scholars have criticized the reasons underlying deference. SEE Randy E. Barnett, Restoring the Lost Constitution 224-52 (2004);
127. David M. Burke, The "Presumption of Constitutionality" Doctrine and the Rehnquist Court: A Lethal Combination for Individual Liberty, 18 Harv.J. L. & Pub. Pol'y73, 83-153 (1994);
128. James R. Rogers, WHY EXPERT FUDGES DEFER TO (ALMOST) IGNORANT LEGISLATORS: ACCOUNTING FOR THE PUZZLE OF JUDICIAL DEFERENCE, IN Instutional Games and the U.S. Supreme Court 24, 27-33 (James R. Rogers et al. eds., 2006).
129. Another explanation for deference is simply that the Court will not strike down legislation that conforms to the policy preferences held by a majority of the Court.
130. See Rogers, supra note 62, at 33. Although this theory may explain WHY in some cases the courts do defer, it does not explain the doctrines of deference themselves.
131. Article VI provides, "Senators and Representatives .shall be bound by Oath or Affirmation, to support this Constitution." U.S. Const, art. VI.
132. See City of Boeme v. Flores, 521 U.S. 507, 535 (1997) ("When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.");
133. 1 Annals of Cong. 500 (Joseph Gales ed., 1834) (1789) (Statement of Rep. James Madison) ("[I]t is incontrovertibly of as much importance to this branch of the Government as to any other, that the Constitution should be preserved entire. It is our duty-").
134. United States v. Morrison, 529 U.S. 598, 607 (2000) ("Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.");
135. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164 (1951) (Frankfurter, J., concurring) (calling for presumption on the ground that the Supreme Court "is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government");
136. see also Field v. Clark, 143 U.S. 649, 672 (1892) (noting that legislation that passes Congress should receive deference if the law is "authenticated in conformity with the Constitution").
137. Article VI provides that "all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." U.S. Const, art. VI.
138. MORRISON, 529 U.S. at 607 ("Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.").
139. Judicial respect also avoids conflict with Congress, which has substantial means of punishing the judiciary. Congress can decide whether to freeze or to increase judicial salaries and how much money to appropriate for staff and facilities.
140. See William M. Landes & Richard A. Posner, THE INDEPENDENT JUDICIARY IN AN INTEREST-GROUP PERSPECTIVE, 18J.L. & Econ. 875, 885-87 (1975). Similarly, Congress can regulate the judicial workload by expanding or contracting federal jurisdiction, or by altering the number of judges.
141. See id.;
142. Thomas W. Merrill, PLURALISM, THE PRISONER'S DILEMMA, AND THE BEHAVIOR OF THE INDEPENDENT JUDICIARY, 88 Nw. U. L. Rev. 396, 397-401 (1993). Judges may expect that they will be rewarded if they uphold legislation, and be punished if they strike legislation down.
143. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44 (1973) ("Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality ").
144. See Horwitz, supra note 13, at 1140-42 (discussing the "gap" between constitutional interpretation and implementation);
145. Frederick Schauer, DEFERRING, 103 Mich. L. Rev. 1567, 1575-77 (2005) (same).
146. Indeed, President Franklin Roosevelt suggested that members of Congress should not even consider questions of constitutionality in enacting legislation, but should focus solely on matters of policy.
147. See Letter from President Franklin D. Roosevelt to Congressman Samuel B. Hill (July 6, 1935), IN 4 The Public Papers and Addresses of Franklin D. Roosevelt 297-98 (Samuel I. Rosenman ed., 1938).
148. A recent example is Senator Arlen Specter's vote in favor of the Military Commissions Act of 2006, Pub. L. No. 109-366, § 7, 120 Stat. 2600, 2635-36
149. (codified as amended at 28 U.S.C. § 2241 (c) (2006)), which stripped the federal courts of jurisdiction to hear habeas petitions filed by enemy combatants detained in Guantanamo Bay. Although denouncing the law as "patently unconstitutional," Senator Specter supported the law on the ground that immediate legislation was necessary and that the courts would "clean up" any unconstitutionalities.
150. See Paul A. Diller, WHEN CONGRESS PASSES AN INTENTIONALLY UNCONSTITUTIONAL LAW: THE MILITARY COMMISSIONS ACT OF 2006, 61 S.M.U. L. Rev. 281, 283 (2008).
151. SEE Michael W. McConnell, INSTITUTIONS AND INTERPRETATION: A CRITIQUE OF City of Boeme v. Flores, 111 Harv. L. Rev. 153, 187 (1997).
152. 449 U.S. 166 (1980).
153. See id. at 171-72.
154. The Court explained that it was " 'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.'" ID. at 179
155. (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960)). It was equally irrelevant that the members of Congress might be "unaware of what [the statute] accomplished."
156. Id.
157. See, e.g., Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 506-07 (1977) (Burger, C.J., dissenting) (stating that the presumption of constitutionality does not apply with equal force where the legitimacy of the composition of representative bodies is at stake). Some decisions do suggest that the courts should defer even to legislative judgments that may infringe fundamental rights
158. see Fullilove v. Klutznick, 448 U.S. 448, 472 (1980) (stating that the Court affords " 'great weight to the decisions of Congress' " even when the legislation implicates the First Amendment or the Equal Protection Clause
159. (quoting Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 102 (1973)), though this has decidedly not been the case in practice.
160. CF. Dennis v. United States, 341 U.S. 494, 539-42 (1951) (Frankfurter, J., concurring) (arguing that the presumption should apply to legislation potentially infringing on First Amendment rights). Justice Scalia has noted that the presumption also does not apply to statutes implicating separation of powers.
161. See Morrison v. Olson, 487 U.S. 654, 704-05 (1988) (Scalia, J., dissenting). This exception is easier to defend under the due respect rationale, because Congress has an interest in expanding its own power at the expense of the judiciary.
162. See supra Part I.
163. See David A. Strauss, PRESIDENTIAL INTERPRETATION OF THE CONSTITUTION, 15 Cardozo L. Rev. 113, 121-22 (1993) (recognizing that the argument from the Oath Clause depends on what the Constitution requires).
164. Most scholars have concluded that judicial interpretations of the Constitution are not the same as the Constitution itself.
165. See, e.g., Richard H. Fallon, Jr., JUDICIALLY MANAGEABLE STANDARDS AND CONSTITUTIONAL MEANING, 119 Harv. L. Rev. 1274, 1318 (2006) (" [Constitutional theories are often theories that implicitly accept the permissibility of a disparity between constitutional meaning and implementing doctrine);
166. Henry P. Monaghan, THE SUPREME COURT, 1974 TERM-FOREWORD: CONSTITUTIONAL COMMON LAW, 89 Harv. L. Rev. 1, 2 (1975) (calling "the impression that every detailed rule laid down [by the Court] has the same dignity as the constitutional text" an "illusion"). Of those who have taken the contrary position, some have argued, not that the Constitution is indeed what the Court says, but instead that as a practical matter judicial interpretations are equivalent to the Constitution since interpretations functionally limit or extend the enforcement of constitutional rights.
167. See, e.g., Daryl J. Levinson, RIGHTS ESSENTIALISM AND REMEDIAL EQUILIBRATION, 99 Colum. L. Rev. 857, 885-87 (1999) (describing remedial equilibration as the definition of a constitutional right such that the right cannot exist apart from the remedy permitted to redress violation of that right). Others, such as Professors Schauer and Alexander, have suggested that the Constitution should be what the Court says it is, but their argument is not based on any special claim of the judiciary.
168. See Larry Alexander & Frederick Schauer, DEFENDING JUDICIAL SUPREMACY: A REPLY, 17 Const. Comment. 455, 457-58 (2000). Instead, they argue that it is desirable to have a single institution settle constitutional questions, and that that institution may as well be the Court.
169. SEE ID. They do not explain, however, why that single institution should be the judiciary instead of the legislature.
170. See id.
171. 384 U.S. 436, 444 (1966) (holding that before interrogating individuals in custody, law enforcement must inform the individual of the right to remain silent and the right to an attorney).
172. SEE Chavez v. Martinez, 538 U.S. 760, 772 (2003) (explaining that judicial "[r]ules designed to safeguard a constitutional right.do not extend the scope of the constitutional right itself").
173. 408 U.S. 238 (1972);
174. see generally Kennedy v. Louisiana, 128 S. Ct. 2641, 2651 (2008) (listing the various state laws contradicting FURMAN).
175. 491 U.S. 397 (1989).
176. Following JOHNSON, Congress enacted the Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777
177. (codified at 18 U.S.C. § 700 (2006))
178. which the Court struck down in UNITED STATES V. EICHMAN, 496 U.S. 310 (1990).
179. 87 492 U.S. 115 (1989).
180. Following SABLE, Congress enacted the Telecommunications Act of 1996, Pub. L. No. 104-104, §502, 110 Stat. 56, 133-36
181. (codified as amended at 47 U.S.C. § 223 (2006))
182. which the Court struck down in RENO V. ACLU, 521 U.S. 844 (1997).
183. 530 U.S. 914 (2000).
184. Following STENBERG, Congress enacted the Partial-Birth Abortion Ban Act of 2003, Pub. L. 108-105, § 3(a)
185. 117 Stat. 1201, 1206
186. (codified at 18 U.S.C. § 1531 (2006))
187. which the Court upheld in GONZALES V. CARHART, 550 U.S. 124 (2007).
188. An example is GONZALES V. CARHART, in which the Court upheld the federal ban on partial-birth abortions. Alexander and Schauer argue that the legislature's refusal to adhere to the Court's constitutional rulings-which they call "legislative disobedience"-is not necessary for the Court to have an opportunity to reconsider constitutional doctrines, stating that "it takes only an individual dissatisfied with the existing law to set in action the process that will give the Supreme Court the opportunity to change its mind."
189. Alexander & Schauer, supra note 7, at 1386.
190. But this is not always so. It is difficult, for example, to imagine a scenario giving rise to a ruling that laws outlawing abortion are constitutional that does not involve legislative disobedience. The Court would have occasion to issue that ruling only if a state enacted a statute outlawing abortion, in defiance of its rulings in PLANNED PARENTHOOD OF SOUTHEASTERN PA. V. CASEY, 505 U.S. 833 (1992)
191. and ROE V. WADE, 410 U.S. 113 (1973). In any event, legislative disobedience is a strong catalyst for constitutional change.
192. Supreme Court of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719, 732 (1980) (acknowledging that state legislators enjoy common-law immunity from liability for their legislative acts);
193. Tenney v. Brandhove, 341 U.S. 367, 379 (1951) (Black.J., concurring)
194. Consider, for example, the Court's suggestion in UNITED STATES V. LOPEZ, 514 U.S. 549 (1995), that Congress must provide factual findings to justify statutes based on the Interstate Commerce Clause, or the Court's conclusion in
195. SEMINOLE TRIBE V. FLORIDA, 517 U.S. 44 (1996), that the Eleventh Amendment prohibits injunctive actions against state officers for violations of federal law when Congress has provided a scheme to remedy such violations. Neither doctrine existed at the time Congress enacted the statutes that those cases overturned.
196. Indeed, Professors Garrett and Vermeule argue that, in a system under which the legislature is asked to predict how the Court will rule, the legislature will simply do what it thinks is best
197. See Elizabeth Garrett & Adrian Vermeule, INSTITUTIONAL DESIGN OF A THAYERIAN CONGRESS, 50 Duke L.J. 1277, 1293 (2001).
198. cf. Frank H. Easterbrook, PRESIDENTIAL REVIEW, 40 Case W. Res. L. Rev. 905, 914 (1990) (stating that the power "[t]o apply the rules includes the power to interpret them").
199. In the 1800s, justices invoked the due respect rationale to justify deference to legislative interpretations of the Constitution. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 270 (1827) (Washington, J.) ("It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the [C]onstitution is proved beyond all reasonable doubt.");
200. id. at 312 (Thompson, J.) ("For it cannot be presumed that [Congress] would have expressly ratified and sanctioned laws which they considered unconstitutional.").
201. To be sure, requiring judicial deference to legislative constitutional interpretations may raise other problems, which are addressed in Part III, but on balance those problems are less significant.
202. One might argue that judicial respect to the legislature is due only to the extent that such respect is consistent with judicial supremacy of constitutional interpretation. But that argument amounts to nothing more than a claim that the Court should respect only constitutional conclusions with which they agree-which cannot be squared with the presumption of constitutionality.
203. Ely, supra note 7, at 74.
204. FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993) (justifying the presumption on the ground that "'[t] he Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted'"
205. (quoting Vance v. Bradley, 440 U.S. 93, 97 (1979)));
206. Gregg v. Georgia, 428 U.S. 153, 175 (1976) (joint opinion of Stewart, Powell, & Stevens, JJ.) ("[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity.");
207. Horwitz, supra note 13, at 1083 (addressing the "separate community doctrine" in which courts give deference to congressional decisions "that implicate constitutional rights"). Similar reasoning underlies the deference afforded to agency interpretations of statutes.
208. SEE Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984) (commanding deference on the ground that agencies, unlike courts, are "accountable to the people" through the President).
209. One criticism of the argument is that the reason for an independent judiciary is to act as a check on the majority by allowing the judiciary to exercise independent judgment in reviewing the constitutionality of legislation. Requiring the judiciary to defer to the democratic branches undermines that structure. The judiciary's independence no longer operates to ensure that the judiciary exercises its independent judgment but instead is used as a reason to require the judiciary to defer to the branches that the judiciary is supposed to check. Rogers, supra note 62, at 27-28.
210. The argument has some force, but one must remember that an independent judicial review is not necessary to preserve the judiciary's role of checking the majority. Any form of review-even deferential review, so long as the deference is not absolute- places limits on the political branches. Moreover, the fact that the people may replace those legislators who support unpopular laws does not necessarily protect the Constitution. Unconstitutionality does not imply unpopularity. Many laws are popular despite being unconstitutional, and many laws are constitutional but unpopular. Legislatures thus have good reason to push the constitutional envelope, and sometimes cross the line, to enact popular legislation, and will not suffer any ill consequences (and indeed might be praised) for doing so. Consider, for example, legislation against flag burning or barring partial birth abortion. For more on this point
211. see Frederick Schauer, Ashwander REVISITED, 1995 Sup. CT. Rev. 71, 92-94 (1995).
212. Michael A. Livermore & D. Theodore Rave, CONVERSATION, REPRESENTATION, AND ALLOCATION: JUSTICE BREYER'S ACTIVE LIBERTY, 81 N.Y.U. L. Rev. 1505, 1510 (2006) (book review) ("[A]ctive liberty suggests that courts should tread lightly where democratically accountable political officials are making policy-especially policy of first impression. Courts should avoid interfering in this process out of respect for the democratic aim of the Constitution and the role of the political branches in facilitating a nationwide deliberation on possible policy alternatives.").
213. 384 U.S. 436 (1966).
214. See id. at 478-79 (summarizing the Court's "policy preferences" with regard to warnings prior to police interrogation).
215. See text accompanying supra note 59.
216. It bears noting, however, that Thayer did not base his argument for deference on democratic accountability. G. Edward White, HistoricizingJudicial Scrutiny, 57 S.C. L. REV. 1, 48 (2005) ("[Thayer's] call for a hands off judicial approach to the decisions of the other branches was not connected to democratic theory ....").
217. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ("The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.").
218. With out any form of judicial review, legislators could avoid even clear constitutional mandates, such as the prohibition on taxing articles exported from a state. See U.S. CONST, art. I,§9, cl. 5.
219. See Matthew D. Adler & Michael C. Dorf, Constitutional Existence Conditions and Judicial Review, 89 VA. L. REV. 1105, 1107-08 (2003) (arguing that courts must engage in independent interpretation of the Constitution in order to identify the authoritative utterances of Congress).
220. Leathers v. Medlock, 499 U.S. 439, 451-52 (1991)
221. (quoting Madden v. Kentucky, 309 U.S. 83, 88 (1940));
222. Carmichael v. S. Coal & Coke Co., 301 U.S. 495, 510 (1937) ("[C]ourts cannot assume that [a state legislature's] action is capricious, or that, with its informed acquaintance with local condidons to which the legislation is to be applied, it was not aware of facts which afford reasonable basis for its action." (citation omitted));
223. see also Minn. Rate Cases, 230 U.S. 352, 465-66 (1913) (indicating that courts are incapable of assessing data necessary to determine constitutionality).
224. See Henry J. Friendly, Indiscretion about Discretion, 31 EMORY L.J. 747, 759-61 (1982).
225. see, e.g., Chevron U.S.A. Inc., v. Natural Res. Def. Council, 467 U.S. 837, 865-66 (1984).
226. United States v. Morrison, 529 U.S. 598, 628 (2000) (Souter, J., dissenting) ("The fact of such a substantial effect is not an issue for the courts in the first instance, but for the Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds ours." (citation omitted));
227. see also id. at 629-34 (detailing some of the evidence before Congress). Judges are less likely to come to the bench with relevant information because they did not go through the election process. They have virtually no ability to request information from third parties or to order studies.
228. See ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROCRESS 173 (2d ed. 1978) ("Courts are institutionally incapable of obtaining the empirical data necessary for making decisions on social policy."). Instead they must rely predominantly on oral arguments and the briefs of parties and amici.
229. See Barkow, supra note 7, at 240.
230. See Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 DUKE LJ. 1169, 1178-82 (2001) (enumerating ways in which Congress is superior to courts at gathering information); (Pubitemid 33651481)
231. Robert Post & Reva Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE LJ. 441, 463 (2000) ("The doctrine of rational basis review specifies the 'judicial restraint' that courts should exercise in responding to claims of invidious discrimination. The Court has offered various reasons to explain this judicial restraint. Sometimes the Court has attributed it to a proper deference to legislative factfinding.");
232. see also Metro Broad., Inc. v. FCC, 497 U.S. 547, 572 (1990) "The 'special attribute [of Congress] as a legislative body lies in its broader mission to investigate and consider all facts and opinions that may be relevant to the resolution of an issue.'"
233. (quoting Fullilove v. Klutznick, 448 U.S. 448, 502 (1980) (Powell, J., concurring)).
234. See Horwitz, supra note 13, at 1101-02;
235. see also Vance v. Bradley, 440 U.S. 93, 120-21 n.6 (1979) (Marshall, J., dissenting) ("Given . . . Congresses] failure subse- quendy to focus on the issue, one may question the appropriateness of the extraordinary deference the Court here affords to congressional factfinding").
236. See Devins, supra note 112, at 1183-84.
237. Consider, for example, Congress's legislation banning partial-birth abortions, which Congress supported with factual conclusions that were demonstrably false. See Gonzales v. Carhart, 550 U.S. 124, 165-66 (2007) (detailing factual inaccuracies in the Act);
238. see also Elizabeth DeCoux, Does Congress Find Facts or Construct Them? The Ascendance of Politics over Reliability, Perfected in Gonzales v. Carhart, 56 CLEV. ST. L. REV. 319, 326 (2008) ("[P]olitical considerations have infected fact-finding to an increasing extent, to the point that almost all fact-finding in modern hearings is deliberately shaped so as to accomplish a political goal.");
239. Devins, supra note 112, at 1183 ("The lesson here is that legislative choices, including factfinding, are driven by agenda- setters.").
240. Devins, supra note 112, at 1183-84;
241. cf. Garrett & Vermeule, supra note 92, at 1287 n.39 (describing the premise that "certain features of legislative behavior may best be explained as if legislators only cared about reelection").
242. Invoking Condor- cet's Jury Theorem, James Rogers suggests that, even if legislators are not particularly good at identifying empirical justifications for legislation, legislatures as an institution are superior to courts, so long as each legislator has above a fifty percent chance of accurately identifying the state of the world. Rogers, supra note 62, at 36-38.
243. But this argument does not justify the presumption of constitutionality. Legislators act for policy reasons, not reasons of constitutionality. Their ability to assess facts accurately therefore does not justify the presumption, which assumes that the legislators acted for reasons of constitutionality.
244. There is thus not much basis for the Supreme Court's statement that, even when there is no evidence that members of Congress considered a constitutional question, the decision to enact a law implicitly rests on their determination that the law is constitutional.
245. See United States v. Munoz-Flores, 495 U.S. 385, 391 (1990).
246. 42 U.S.C. § 13981(a) (2006).
247. United States v. Morrison, 529 U.S. 598, 614 (2000) (alterations in original)
248. (quoting United States v. Lopez, 514 U.S. 549, 557 n.2 (1995)).
249. See, e.g., CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 57-59 (2001);
250. see also Neomi Rao, The President's Sphere of Action, 45 WILLAMETTE L. REV. 527, 547 (2009) (noting the "widely accepted ideas" of "the Supreme Court's institutional advantages with regard to constitutional interpretation").
251. To be sure, although legislatures have an obligation to consider constitutionality in legislation, legislators might not always take that obligation seriously. They may vote on statutes without regard to constitutionality.
252. See supra note 73. How often legislators consider constitutional questions in enacting legislation and how often those considerations affect their votes are empirical questions beyond the scope of this Article. But legislatures doubtless consider constitutional questions at least some of the time, and they may do so more frequently than the courts. Moreover, the legislature routinely considers constitutional questions in contexts other than lawmaking. During debates over appointments to the judiciary or other important office, for example, senators regularly discuss constitutional interpretation.
253. See Nixon v. United States, 506 U.S. 224, 226 (1993) (holding that issues relating to impeachment were nonjusticiable political questions);
254. Taylor v. Beckham, 178 U.S. 548, 578-81 (1900) (refusing to hear challenge under Republican Form of Government Clause to the state's resolution of gubernatorial election);
255. Berk v. Laird, 429 F.2d 302, 305 (2d Cir. 1970) (classifying decisions to go to war as nonjusticiable political questions).
256. 418 U.S. 166 (1974).
257. The Accounts Clause provides that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." U.S. CONST, art. I, § 9, cl. 7.
258. Richardson, 418 U.S. at 179.
259. Consider, for example, a state law that, like the federal Constitution, requires the publication of expenditures by the state government. Just as in Richardson, no one would have standing to challenge the state legislature's failure to issue that publication. Of course, depending on state law, it is possible that a state court could have jurisdiction to consider the issue.
260. See Mark Tushnet, Is Congress Capable of Conscientious, Responsible Constitutional Interpretation? Some Notes on Congressional Capacity to Interpret the Constitution, 89 B.U. L. REV. 499, 502-03 (2009).
261. See Jeffrey K. Tulis, On Congress and Constitutional Responsibility, 89 B.U. L. REV. 515, 519 (2009).
262. See id. at 530 (providing details on these and other examples);
263. see generally Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. REV. 707 (1985) (recounting many examples of Congressional interpretation of the Constitution).
264. Some have also argued that the judiciary is superior to the legislature at constitutional interpretation because the judiciary is arguably a more deliberative body than the legislature. But others have disputed this point, arguing that the legislature prvides a forum for more open, public debates that allows for more inputs that may lead better solutions.
265. See, e.g., JURG STEINER ET AL., DELIBERATIVE POLITICS IN ACTION 128-31 (2004) (arguing that publicity changes the character of debate by increasing the quality of argument and the type of justification);
266. Garrett & Vermeule, supra note 92, at 1291. Moreover, deliberations in the judiciary today are hardly ideal. Judges rarely flesh out ideas through discussion cases, but instead communicate through the exchange of written memos and opinions, a process that inevitably results in incomplete discussion. Indeed, district court judges do not engage in any deliberation at all, yet they do not defer on constitutional interpretations. On top of that, deliberation in the judiciary may not be particularly valuable. The value of deliberation is that it promotes the exchange of information, but the members of the judiciary are relatively homogenous, which means that deliberation may not be particularly likely to bear fruit. In any event, that deliberations in the judiciary now may be more fruitful than those in the legislature does not mean that they always will be so.
267. Another objection is that legislatures tend to be reactionary bodies, acting only when there is pressing urgency to act, and the need to accomplish immediate results precludes much reflection on constitutional issues.
268. See KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION 38-39 (1999);
269. Abner J. Mikva, How Well Does Congress Support and Defend the Constitution? 61 N.C. L. REV. 587, 609-10 (1983). But courts also act under the time constraints because of the need to resolve cases quickly to avoid prejudicing parties.
270. See Devins, supra note 112, at 1180.
271. See Erwin Chemerinsky, The Supreme Court, 1988 Term-Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 85-86 (1989).
272. This also undercuts to some degree the argument that courts are in a better position to interpret the Constitution because the judiciary has the institutional advantage of being able to address constitutional issues with the benefit of some hindsight to the extent that the ill effects of biased interpretation may offset the benefits of hindsight.
273. See Richard H. Fallon, Jr., The Core of an Uneasy Caseior Judicial Review, 121 HARV. L. REV. 1693, 1697 (2008)
274. It is also worth noting that the same point applies equally to the factual presumption. Any doctrine of deference sustaining legislation will inevitably produce unprincipled law if the legislature itself is unprincipled in making its original decision.
275. Garrett and Vermeule have proposed changes to the legislature to improve its ability to perform constitutional interpretation.
276. See Garrett & Vermeule, supra note 92, at 1303-30.
277. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 38-39 (1999);
278. Devins, supra note 112, at 1179.
279. Whether there is a constitutional right of privacy has been the subject of much debate in and out of the courts. For its part, the Supreme Court has suggested there is a right to privacy, though it has not identified the source of that right. Compare Griswold v. Connecticut, 381 U.S. 479, 484 (1965) (basing privacy on "penumbras" of various constitutional provisions)
280. with Roe v. Wade, 410 U.S. 113, 153 (1973) (locating privacy in the Fourteenth Amendment). Nor has the Court articulated a theory of the scope or extent of that right; instead, it has examined the right on a case-by- case basis.
281. See, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003) (recognizing privacy right to engage in homosexual conduct); Bd. of Educ. v. Earls, 536 U.S. 822, 830-32 (2002) (finding no privacy right against the collection of urine samples for drug testing at schools);
282. Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (finding no privacy right to assisted suicide);
283. Roe, 410 U.S. at 113, 153 (recognizing privacy right to abortion).
284. See Printz v. United States, 521 U.S. 898, 918-22 (1997) (prohibiting federal government from commandeering state law enforcement);
285. New York v. United States, 505 U.S. 144,155-156 (1992) (prohibiting federal government from commandeering state legislatures);
286. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) (federal government may regulate state employee wages)
287. overruling Nat'l League of Cities v. Usery, 426 U.S. 833 (1976).
288. See Alden v. Maine, 527 U.S. 706, 732 (1999).
289. ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY 274 (2006);
290. Fallon, supra note 133, at 1697 ("Virtually without exception, judges and Justices are well-educated members of the upper or upper-middle classes who have been socialized to accept professional norms. The preference for having a small number of lawyers in robes resolve contested questions about individual rights almost inevitably reflects one or another species of antipopulism.").
291. One might think that the legislature is inferior to the Supreme Court at constitutional interpretation to the extent that the legislature's interpretations diverge from those of the Court. But that is not a sound conclusion. The question is whether the legislature or the courts are better at interpretation, and assuming the Court's interpretation is correct is to assume the answer to the question. Hugh Baxter, A Comment on Mark Tushnet's Some Notes on Congressional Capacity to Interpret the Constitution, 89 B.U. L. REV. 511, 511 (2009).
292. See Calabresi, supra note 7, at 272 ("Mr. Dooley's dictum about the Supreme Court's tendency to follow the election returns seems no less apt today than when it was first printed almost a century ago."). Indeed, with the possible exception of Justice Thomas, all the Justices have stated that the Constitution must be updated to take account of contemporary values. Even Justice Scalia has arguably acknowledged this point.
293. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 864 (1989) ("I hasten to confess that in a crunch I may prove a faint-hearted originalist"). Justice Scalia's allegiance to originalism is out of a concern that the judges not substitute their values for the public's.
294. Id. at 863. But this concern applies to a much lesser degree, if it applies at all, when it is the legislature that is considering current social norms.
295. Even for nonpopulist methods of interpreting the Constitution, such as originalism, it is not clear that courts are better at performing that interpretation than legislatures. All methods of interpretation require external information, such as legislative history, social norms, or the historical circumstances surrounding the enactment of the law. Because of their limited resources, courts may be worse than Congress at gathering this information.
296. 290 U.S. 398 (1934) (offering a new interpretation of the Contracts Clause).
297. 316 U.S. 535, 541 (1942)
298. (recognizing a fundamental right to procreate, thereby overruling Buck v. Bell, 21A U.S. 200 (1927)).
299. 347 U.S. 483 (1954)
300. (declaring segregation inherently unequal and overruling Plessy v. Ferguson, 163 U.S. 537 (1896)).
301. Stafford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2641 (2009) (stating that whether a search is reasonable under the Fourth Amendment depends in part on "societal expectations of personal privacy").
302. Roper v. Simmons, 543 U.S. 551, 561 (2005) (considering "'the evolving standards of decency that mark the progress of a maturing society'" to determine whether punishment is cruel and unusual
303. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1957)).
304. see generally Corinna Barrett Lain, The Unexceptionalism of Evolving Standards, 57 UCLA L. REV. 365, 377-400 (2009) (identifying other examples).
305. In enumerating the reasons behind the scope of judicial review, I do not mean to enumerate the reasons for judicial review itself. There are many reasons for judicial review, ranging from the protection of "particular rights or privileges," THE FEDERALIST No. 78 (Alexander Hamilton), supra note 9, at 434, to providing "an instrument of sober second thought" of political determinations. Herbert Wechsler, Comment, in GOVERNMENT UNDER LAW 134, 137 (Arthur E. Sutherland ed., 1956)
306. (responding to Joseph M. Snee, Leviathan at the Bar of Justice, in GOVERNMENT UNDER LAW, supra, at 91). The reasons for judicial review do not dictate the scope of that review.
307. See Monaghan, supra note 41, at 9 ("The judicial duty to decide demands nothing with respect to the scope of judicial review ....").
308. Richard H. Fallon, Jr., The Supreme Court, 1996 Term-Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 64 (1997)
309. (quoting Sager, supra note 49, at 1221).
310. See id. at 64-67.
311. See id.
312. Compare, e.g., Heart of Atlanta Motel v. United States, 379 U.S. 241, 309 (1964) (asserting that the Court was persuaded by the "voluminous legislative justifications" for the Civil Rights Act of 1964);
313. Morrison 529 U.S. at 614 (examining congressional findings in considering constitutionality of Violence Against Women Act);
314. with Lopez, 514 U.S. at 562-63, (seeking to provide justifications for Gun-Free School Zones Act after noting that Congress failed to provide justifications).
315. See supra note 110.
316. See Peter J. Smith, New Legal Fictions, 95 GEO. L.J. 1435, 1478-80 (2007) (arguing that abandoning the assumption that legislators uphold their oath to support the constitution would undermine legitimacy of legislature).
317. See id.
318. See Heller, 509 U.S. at 320-21.
319. See Calabresi, supra note 7, at 274-76;
320. Lawson & Moore supra note 7, at 1274-79.
321. See Calabresi, supra note 7, at 274-76.
322. See id.
323. The argument does face substantial objections, though. That the branches of government have comparable authority under the Constitution does not establish that they have equal interpretive power. As noted above, the Constitution does not assign any interpretive power, and any conclusion about the allocation of interpretive power must be inferred.
324. See supra Part II. Moreover, even if the departmentalist argument were correct, deference may still be appropriate. The departmentalist argument contends only that the Constitution does not give any particular branch the unique authority to interpret the Constitution.
325. See Steven G. Calabresi, The Originalist and Normative Case Against Judicial Activism: A Reply to Professor Randy Bamett, 103 MICH. L. REV. 1081, 1091-94 (2005);
326. Lawson & Moore, supra note 7, at 1278.
327. But being assigned authority to interpret is not the only basis for deference to another decisionmaker. Courts regularly defer to other decisionmakers because of expertise, as in Skidmore, or to avoid conflict, as in abstention doctrines. As noted earlier, these reasons also underlie the deference reflected in the presumption of constitutionality.
328. See supra Part II.C.
329. See Barkow, supra note 7, at 309-14 (discussing the Court's "growing distrust of other interpreters of the Constitution). Despite occasional protests, most have accepted this judicial supremacy.
330. David S. Law, A Theory of Judicial Power and Judicial Review, 97 GEO. L.J. 723, 785 (2009) (describing Cooper as an unwarranted assertion of power, but that "[w]ith the passage of time, the illusion of power has become the reality").
331. To be sure, the current system places interpretive authority in the judiciary instead of the legislature. But the point is that it rests on the belief that not all branches have equal, interpretive authority.
332. Heller v. Doe, 509 U.S. 312, 320-21 (1993).
333. See Calabresi, supra note 7, at 272.
334. See ELY, supra note 7, at 73-104. I do not mean to say that the majority has no incentives to consider minority rights in enacting legislation. Legislators often enact legislation with an eye towards future legislation, and members of today's minority might be needed to enact tomorrow's legislation. The point is only that the incentives may be reduced.
335. Sager, supra note 49, at 1215
336. (quoting Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REV. 341, 344 (1949)).
337. See FCC v. Beach Commc'ns, Inc., 508 U.S. at 307, 313-16 (1993).
338. Pub. L. No. 103-141, 107 Stat. 1488
339. (codified as amended at 42 U.S.C. §§ 2000bb-l to -4 (2006))
340. invalidated in part by City of Boerne v. Flores, 521 U.S. 507 (1997).
341. For example, following the Court's rejection of the argument in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 637 (2007), that, in a disparate pay claim under Title VII, the statute of limitations restarts with each inadequate paycheck, Congress enacted legislation overturning that decision.
342. See Lily Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009).
343. Similarly, Congress amended Tide VII to overturn the Supreme Court's decision in Ward's Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989), which had held that employers could engage in hiring practices with disparate impacts if they served "legitimate employment goals."
344. See Civil Rights Act of 1991, Pub. L. No. 102-166,§3, 105 Stat. 1071, 1071
345. (codified as amended in 42 U.S.C. §1981 note (2006)).
346. See generally Donald Braman, Criminal Law and the Pursuit of Equality, 84 TEX. L. REV. 2097, 2109-12 (2006) (discussing other examples).
347. see Frederick Schauer, Authority and Authorities, 94 VA. L. REV. 1931, 1953 (2008) ("Just as rights, rules, and obligations can serve as reasons for action or decision even if they can be overridden at times by stronger rights, rules, and obligations, sources can also function as authorities without necessarily prevailing over all other sources, or even all other reasons for a decision." (footnote omitted));
348. Frederick Schauer, A Comment on the Structure of Rights, 27 GA. L. REV. 415, 416-17 (1993).
349. 521 U.S. 507 (1996).
350. see McConnell, supra note 74, at 188;
351. cf Fallon, supra note 133, at 1709 (arguing that judicial review is most easily justified when courts act to protect more rights than legislatures).
352. Cf. Lawson & Moore, supra note 7, at 1276 (making a similar point with respect to the courts).
353. Cf. THE FEDERALIST NO. 51 (James Madison), supra note 9, at 290 ("In republican government, the legislative authority necessarily predominates.").
354. See City of Boerne v. Flores, 521 U.S. 507, 527-29 (1997).
355. 531 U.S. 98 (2000).
356. See id. at 104-10.
357. See generally F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 CORNELL L. REV. 275, 290-99 (2008) (recounting history of changes in standing doctrine).
358. See Barkow, supra note 7, at 317-19.
359. See, e.g., Marshall v. Marshall, 547 U.S. 293, 312 (2006) (limiting probate exception to federal jurisdiction).
360. See Hamdan v. Rumsfeld, 548 U.S. 557, 572-84 (2006) (refusing to apply restriction on federal jurisdiction over enemy combatant cases).
361. See generally F. Andrew Hessick III, The Common Law of Federal Question Jurisdiction, 60 ALA. L. REV. 895, 914-25 (2009) (discussing the Court's willingness to bend interpretation of jurisdictional statutes to fit its desire).
362. See Alexander & Schauer, supra note 7, at 1371-72.
363. See e.g., Frank I. Michelman, The Supreme Court, 1985 Term-Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 60-65 (1986);
364. Martha Minow, The Supreme Court, 1986 Term-Foreword: Justice Engendered, 101 HARV. L. REV. 10, 45-50 (1987).
365. See Arizona v. Gant, 129 S. Ct. 1710, 1722 (2009) ("We have never relied on stare decisis to justify the continuance of an unconstitutional police practice.");
366. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (noting that the Court had "during the past 20 Terms overruled in whole or in part 33 of its previous constitutional decisions").
367. See VERMEULE, supra note 140, at 275.
368. See id.
369. Greater settlement problems arise if the courts were to defer to the legislature even when the legislature does not provide an explicit interpretation of the Constitution? That is, if the courts were to uphold legislation if there were a potential construction of the Constitution that supported the legislation. In that case, deference would leave the meaning of the Constitution ambiguous. But that problem is avoided if courts defer only when the legislature provides an express interpretation.
370. Cf. United States v. Booker, 543 U.S. 220, 263-65 (2005) (explaining that appellate review for reasonableness achieves some uniformity).
371. There are good reasons for Congress's interpretation to prevail. First, Congress may be superior to state legislatures at constitutional interpretation. Because its members come from across the nation, Congress represents a broader set of viewpoints and social understandings than state legislatures. As Federalist No. 10 explains, states are more likely than Congress to trample on minority rights because, compared to Congress, states are small, relatively homogenous groups.
372. See THE FEDERALIST NO. 10 (James Madison), supra note 9, at 50. For these reasons, the Court has in the past treated state and federal governments differendy with respect to the Constitution. Congress, therefore, is likely a better institution than the state legislatures to render constitutional interpretations that reflect current social norms.
373. Second, the federal courts may have less cause to afford due respect to the state legislatures. The reason that courts give respect to Congress's interpretation of the Constitution is not simply that Congress has taken the oath to uphold the Constitution. Were that enough, courts would defer to constitutional interpretations rendered by any government employee, including the janitor.
374. See 5 U.S.C.§3331 (2006) (requiring "[a]n individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services," to take such an oath). The reason for respect to Congress's interpretation is that it is a coequal branch with the judiciary. States do not fit that bill.
375. Third, insofar as courts should defer to legislative interpretations because the Constitution itself assigns the primary responsibility of interpretation to the legislature, Congress's interpretation may trump state interpretations under the Supremacy Clause. That is because, if the Constitution itself commits interpretation to the legislature, legislative interpretations of the Constitution themselves essentially constitute law.
376. Cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865-66 (1984) (relying on a similar theory to justify judicial deference to agency interpretations of statutes).
377. One way to avoid this incoherence is to refuse to apply the presumption to state legislation. But this is difficult to justify. The Court has not hesitated to apply the presumption of constitutionality to state legislation. From its earliest days through last Term, the Court has invoked the presumption in evaluating state legislation. Moreover, most of the reasons justifying the presumption with respect to Congress apply equally to the states. The only justification that does not is that the Court should hesitate to overturn the constitutional determination of a coordinate branch of government.
378. See Amanda Frost, Overvaluing Uniformity, 94 VA. L. REV. 1567, 1612 (2008) (noting inevitable disuniformity in constitutional law given the current judicial structure).
379. Indeed, one article argues that the Supreme Court itself encourages such disobedience.
380. See Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. 501, 516-47 (2008) (giving three examples where the Supreme Court invited state court disobedience).
381. U.S. CONST, amend. V.
382. U.S. CONST, amend. XIV,§1
383. See Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2319 (2009) (looking to Alaska state law to determine whether prisoner had liberty interest in demonstrating innocence through new evidence);
384. Bishop v. Wood, 426 U.S. 341, 344-345 (1976) (resorting to state law to define property interest).
385. U.S. CONST, amend. I.
386. Ashcroft v. ACLU, 535 U.S. 564, 574 (2002)
387. (quoting Miller v. California, 413 U.S. 15, 24 (1972)).
388. One could argue that lack of constitutional uniformity imposes unacceptable costs on multistate actors. But those actors routinely face problems of this sort, and those problems are handled through federal statute that displaces state law, not through the Constitution. To the extent intolerable costs result from state legislation based on divergent constitutional interpretations, Congress may intervene to enact a federal standard.
389. See Frost, supra note 192, at 1588-91.
390. See id. at 1589 ("[Reasonable variations in the interpretation of federal law are arguably more legitimate than a single, nationwide interpretation ....").
391. See id. at 1597-98 & n.104;
392. Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 1ll Harv. L. Rev. 2180, 2213-28 (1998).
393. See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1820 (2005) (noting that some called Bush v. Gore illegitimate on the ground that "the majority breached the requirement that judges must apply legal principles consistently, without regard to the parties or a case's partisan impact").
394. See supra note 122 and accompanying text.
395. One doctrinal question that would arise is whether a court should defer to two inconsistent interpretations rendered by the same legislature. On the one hand, the practice seems consistent with the idea that, since the Constitution is without precise meaning, the judiciary should defer to any reasonable interpretation of the Constitution. On the other hand, allowing a legislature to rely on conflicting interpretations to support its laws would threaten the public's perception of the legitimacy of the Constitution. On balance, it may be that the legitimacy concerns in that context should require a legislature to pick a particular interpretation.
396. See Fallon, supra note 203, at 1805 ("With respect to the most fundamental matters, sociological legitimacy is not only a necessary condition of legal legitimacy, but also a sufficient one .... The Constitution is law not because it was lawfully ratified, as it may not have been, but because it is accepted as authoritative.").
397. See id. at 1804
398. ("Its sociological legitimacy gave it legal legitimacy ....").
399. Indeed, the Supreme Court has stated that "'the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency." Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996)).
400. See Posner, supra note 37, at 48 ("It is no longer open to debate that ideology (which I see as intermediary between a host of personal factors, such as upbringing, temperament, experience, and emotion-even including petty resentments toward one's colleagues-and the casting of a vote in a legally indeterminate case, the ideology being the product of the personal factors) plays a significant role in the decisions even of lower court judges when the law is uncertain and emotions aroused.").
401. One might argue that requiring actual legislative findings of fact would be inefficient, because if courts strike down legislation based on the legislature's failure to find sustaining facts, the legislature will simply reenact the law with the necessary factfindings.
402. See John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1214-15 (1970) (arguing that striking statutes based on incorrect motivation is inefficient since legislature can reenact a statute based on "right" motivation). But this does not justify deference on factual matters; rather, it supports changing constitutional doctrine so that it does not depend on factual deference.
403. See, e.g., Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 819 (1935) (describing the presumption as requiring courts sitting as "lunacy commissions ... in judgment upon the mental capacity of legislators . . . .").
404. See supra Parts II, III.
405. This does not necessarily lead to reduced deference. Courts may adopt doctrinal formulas for constitutionality that do not depend on legislative factual determinations. For example, one could imagine a doctrine for the commerce clause that permits any law that could impact interstate commerce, as opposed to whether Congress could have made that conclusion.
406. 531 U.S. 356 (2001).
407. Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213 (2006)).
408. See Bd. of Trs. v. Garrett, 531 U.S. at 364.
409. Congress held thirteen hearings and created a special task force that held hearings in every state.
410. See id. at 389 app. A (Breyer, J., dissenting) (listing the Congressional hearings);
411. id. at 391 app. C
412. (providing an inventory of the submissions made by individuals nationwide to the Task Force on Rights and Empowerment of Americans with Disabilities).
413. See id. at 370 (majority opinion) (stating that "Congress assembled only . . . minimal evidence of unconstitutional state discrimination").
414. To be sure, if courts strike down legislation based on the legislature's failure to find sustaining facts, the legislature may simply reenact the law with the necessary factfindings.
415. See Ely, supra note 210, at 1214. But this does not justify judicial deference to legislative factual findings; to the contrary, it counsels against any factual deference.
416. See Harold J. Krent, Turning Congress into an Agency: The Propriety of Requiring Legislative Findings, 46 Case W. Res. L. Rev. 731, 738-42 (1996).
417. Similarly, one might argue that courts should presume that legislatures exercise their fact-finding expertise in making factual findings. That argument is a variation on the due-respect argument and is subject to the same criticisms made above.
418. See supra Part 11. A.
419. One case where the justification was not obvious is United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980). There, the Court sustained legislation giving retirement benefits to certain railroad employees who had been employed (or otherwise had a connection with) the railroad industry in 1974, but denying those benefits to railroad employees who did not work for the railroads in 1974 (even if that employee had worked before and after 1974 for the railroads).
420. See id. at 168-74
421. (discussing the structure of the "grandfather" clause of the Railroad Retirement Act of 1974, 45 U.S.C. § 231b(h) (1976)). Although Congress offered no justification for the distinction and apparently was not aware of the effect of the statute
422. see id. at 185-86
423. (Brennan, J., dissenting), the Court justified the distinction on the ground that Congress could assume that those who had a current connection with the railroad industry when the Act was passed in 1974, or who returned to the industry before their retirement, were more likely than those who had left the industry prior to 1974 and who never returned, to be among the class of persons who pursue careers in the railroad industry, the class for whom the Railroad Retirement Act was designed.
424. Id. at 178 (majority opinion).
425. Justice Stevens has advocated a somewhat similar standard. He has rejected the presumption of constitutionality on the ground that it "sweeps too broadly." FCC v. Beach Commc'ns, Inc., 588 U.S. 307, 323 n.3 (1993) (Stevens, J., concurring in the judgment).
426. In his view, instead of supplying any conceivable facts in evaluating legislation, courts should consider the facts that it "may reasonably presume to have motivated" the legislature. Fritz, 449 U.S. at 181 (Stevens, J., concurring).
427. U.S. Const, amend. VII.
428. Tushnet, supra note 127, at 502-03.
429. Professor Fallon has noted that it would be "dramatically imprudent for a society that thought its legislature did not currently take rights seriously" to adopt Thayer- ian deference "in hopeful anticipation that the legislature would thereafter change its ways." Fallon, supra note 133, at 1705. This structure, however, does not face that problem because the deference would be appropriate only when there was evidence that the legislature did take rights seriously.
430. Thus, for example, deference may be appropriate if the legislative history clearly established that a particular constitutional interpretation drove a piece of legislation. This may result in legislators inserting statements into the legislative history solely to limit judicial review. But that practice would at least reflect legislative consideration of the constitutional issues.
431. Indeed, the Court itself has recognized the point.
432. See Bd. of Educ. v. Mergens, 496 U.S. 226, 251 (1990) ("Given the deference due 'the duly enacted and carefully considered decision of a coequal and representative branch of our Government,' we do not lightly second-guess such legislative judgments, particularly where the judgments are based in part on empirical determinations." (citations omitted)
433. quoting Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 319 (1985).
434. See generally David Caute, The Great Fear 25-81 (1978) (outlining the anti- Communist hysteria during the Truman and Eisenhower administrations).
435. See Marc Rohr, Communists and the First Amendment: The Shaping of Freedom of Advocacy in the Cold War Era, 28 San Diego L. Rev. 1, 10-17 (1991) (describing pre- and post-World War II developments in this area).
436. See Sheryl Gay Stolberg, Once-Lone Foe of Patriot Act Has Company, N.Y. Times, Dec. 19, 2005, at A28 ("Polls show that public support for the Patriot Act has waned over time ....").
437. Many have argued that aggressive judicial review reduces the incentive for the legislature to ensure that the laws it enacts are constitutional; legislatures may simply rely on the courts to correct any constitutional infirmities.
438. See Thayer, supra note 49, at 155-56;
439. see also Tushnet, supra note 127, at 504-08 (describing this phenomenon as the problem of "the judicial overhang").
440. See Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 112-23 (2000).
441. As Professor Sager has explained, judicial enforcement of certain constitutional norms to their full conceptual limits potentially entails many costs. See Sager, supra note 49, at 1221-22.
442. Chief Justice Rehnquist also noted that deference to legislative interpretations reduces the distaste of an erroneous interpretation. Without deference, an erroneous interpretation results in the imposition of the view of five justices; but with deference, the erroneous interpretation is the product of the majority. William H. Rehnquist, The Supreme Court 318-19 (1987).
443. Vermeule, supra note 140, at 274.
444. See id.
445. A scheme of deference to legislative interpretations of the constitution would similarly increase the predictability of laws for the public. Judicial interpretations occur after a person has acted; by contrast, legislative interpretations ordinarily occur before a person acts, because laws are generally prospective in nature, so people may conform their behavior to reflect legislative interpretation.
446. 408 U.S. 238 (1972).
447. Two justices-Justices Brennan and Marshall-would have barred all capital punishment.
448. See id. at 305 (Brennan, J., concurring);
449. id. at 371 (Marshall, J., concurring). Justices Douglas, Stewart, and White concluded that the death penalty statute was unconstitutional because it afforded the jury too much discretion.
450. See id. at 245 (Douglas, J., concurring) (condemning statute for its "selective and irregular" application);
451. id. at 308-10 (Stewart, J., concurring) ("[T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed" on a "capriciously selected random handful" of individuals);
452. id. at 314 (White, J., concurring) (striking statute because the jury "in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime").
453. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 285-87 (1976) (invalidating mandatory death penalty enacted in light of Furman).
454. 494 U.S. 872 (1990).
455. See id. at 886-89.
456. See City of Boeme v. Flores, 521 U.S. 507, 515 (1997);
457. McConnell, supra note 74, at 186-88.
458. See 42 U.S.C. § 2000bb(b)(l)
459. stating that the Act is designed "to restore the compelling interest test as set forth in Sherbert v. Vemer, 374 U.S. 398 (1963)
460. Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened").
461. Boeme, 521 U.S. at 529
462. quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
463. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
464. See, e.g., Chad M. Oldfather, Writing Cognition, and the Nature of the fudicial Function, 96 Geo. L.J. 1283, 1333-34 (2008) ("[T]he primary source of judicial legitimacy lies in reasoned appeals to appropriate legal authority.").
465. Granting the legislature primary interpretative authority over the Constitution may also accelerate the rate of constitutional change, if the legislature were not to adopt its own doctrine of stare decisis. Although some scholars have argued against more rapid development of consdtutional law
466. see Cass R. Sunstein, One Case at a Time 8-11 (1999) (arguing that courts should avoid adopting general constitutional principles but instead should resolve cases on narrow grounds), the principal reason is that new constitutional rules may prove to be suboptimal as more information is revealed, and that correcting these errors may prove difficult because of the nature of the judicial process. Allocating constitutional interpretation to the legislature largely avoids this problem to the extent that the legislature does not abide by stare decisis.
467. 545 U.S. 967 (2005)
468. Id. at 982-83.