Academic

Nelson on Judicial Review of Legislative Purpose

By Lawrence Solum

Caleb Nelson (University of Virginia - School of Law) has posted Judicial Review of Legislative Purpose (New York University Law Review, December 2008) on SSRN.  Here is the abstract:

When modern American courts assess the constitutionality of a statute, they often investigate the possibility that the enacting legislature had hidden purposes that make the statute invalid. For most of our history, though, courts shied away from such inquiries--not because the Constitution was thought to impose no purpose-based restrictions on legislative power, but because those restrictions were not thought to lend themselves to much judicial enforcement. This Article provides a comprehensive history of changes over time in judicial review of legislative purpose. Given the increasing prominence of purpose tests in modern constitutional adjudication, this history is important in its own right. But it also sheds light on other topics of interest to modern lawyers, including the proper interpretation of various seminal precedents, the famously murky doctrine of "unconstitutional conditions," and the ways in which uncodified norms of judicial practice can affect the glosses that courts put on the Constitution's text.

And from the conclusion:

Even if one believes (as I do) that courts should care about the original understanding of the Constitution and that settled historical practices can help to ?fix? the Constitution?s meaning on ambiguous points,350 the Constitution does not reach or resolve many questions about the practice of judicial review. This does not mean that the practice is a usurpation: while the Constitution might not compel judicial review, the Constitution does not rule it out either, and many members of the founding generation anticipated in general terms that the judiciary would refuse to apply statutory provisions that judges determined to be unconstitutional. 351 According to the most sophisticated recent scholarship on the relevant history, however, judicial review did not grow out of the Constitution itself. Instead, it reflected the application to our constitutional system of preexisting principles?principles about the courts? role in enforcing limits on the authority that had been delegated to corporate entities,352 or more general principles ?about the hierarchy of law and the duty of judges to decide in accord with law.?353 On this account, the practice of judicial review stems from a species of general jurisprudence rather than from the Constitution?which makes it quite unlikely that the Constitution regulates the details of that practice (such as the conditions under which courts reviewing a statute?s constitutionality can look behind the statute?s stated purposes and impute impermissible motivations to the enacting le gislature).

Indeed, even if one believes that the courts? authority to conduct judicial review stems entirely from the Constitution rather than from the application to our constitutional system of uncodified principles, one still cannot plausibly read the Constitution to supply many details about the practice of judicial review. 354 No one thinks, for instance, that the Constitution codifies the rules of evidence that courts must use in cases implicating a statute?s constitutionality; instead of being restricted to the evidentiary sources of 1788, modern courts conducting judicial review can use modern rules of evidence. There is little more reason to think that the Constitution codifies the practices of 1788 about judicial inquiries into legislative purpose. In fact, one of the primary differences between those practices and their modern counterparts can be cast in terms of evidence: modern courts are willing to impute impermissible motivations to the legislature on the basis of materials that founding-era courts would not have considered.

Highly recommended!

Full post as published by Legal Theory Blog on May 27, 2008 (boomark / email).