Vol. 10 No. 8 (August 2000) pp. 464-466.
RECKLESS LEGISLATION: HOW LAWMAKERS IGNORE THE CONSTITUTION by Michael A.
Bamberger. New Brunswick: Rutgers University Press, 2000. 233 pp.
Reviewed by Gerald J. Russello
Attacking the judiciary for its "undemocratic" nature or the seeming
inconsistency in its decisions is a practice as old as the Republic. Although the
intensity of attentions and criticism of the courts varies, over the past several decades,
these criticisms have assumed a greater place in the national life. The continuing debate
over the decisions and legacy of the Warren Court is perhaps the most prominent example,
but also the nominations of Robert Bork and, to a lesser degree, Clarence Thomas have
again made the Court itself a political issue. The issue of judicial nominations will
likely be a subject during the election season this fall. Just in the past several years,
conservatives have organized a coordinated campaign against what they perceive as the
legacy of its decision in PLANNED PARENTHOOD v. CASEY (1992), in particular what CASEY and
related decisions
seem to indicate about the Supreme Court's own conception of its role. Liberals, for their
part, have increased their criticism of the Court's presumed rightward activist tilt.
In this volume, Michael Bamberger, a practicing attorney in Chicago, turns his attention
to a different branch of government: the legislature. The legislative branch, both the
Congress and the various state legislatures, has also never been immune from criticism.
The content of most popular criticism of the legislatures, however, usually centers on its
effectiveness
(or lack thereof) and the individual legislator's vulnerability to corruption, rather than
their constitutional place in the polity. Bamberger here wants to make a different point.
In RECKLESS LEGISLATION he examines the practical impact of the oath taken by legislators
to "uphold the Constitution." Specifically, he asks whether that oath provides
any substantive incentive to legislators to resist political pressure and to refuse to
enact unconstitutional legislation.
Through a series of case studies of state and federal legislation, Bamberger illustrates
the several ways in which statutes of questionable constitutionality come to be passed and
challenged in court. This political maneuver, too, has become a standard practice. It is
part of Bamberger's thesis that such tactics demonstrate the legislators' abdication of
their responsibility independently to assess the constitutionality of proposed statutes.
Legislators, knowing that the courts will be there to redress any mistakes, simply choose
short-term gain and support statutes of dubious constitutionality. This refusal to abide
by their oath, Bamberger asserts, has led to greater institutional problems, such as the
involvement of the judiciary in "political problems" that shifts the focus from
the political to social merits of a proposal to the question of the proposal's
constitutionality, which is not necessarily the same, and oftentimes not the proper,
question.
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Although not a theoretical or statistical study, RECKLESS LEGISLATION contains a bit of
both, which serve as bookends alongside its more anecdotal approach. Bamberger opens with
a short account of the historical background to contemporary understanding of
constitutionality, emphasizing, not surprisingly the MARBURY decision. Once the basic
issue of MARBURY had been decided - that the Supreme Court could review laws for
constitutionality - the outstanding question, Bamberger states, was "whether this
meant that only the courts ad the competence to determine [constitutionality] or whether
the
legislative and executive branches also bore responsibility for maintaining constitutional
standards" (p. 3). Bamberger concludes that this "tripartite" theory of
constitutional review ultimately prevailed, and his concern in this book is to determine
whether the members of Congress have lived up to this responsibility. The book closes with
an appendix that updates Donald G.
Morgan's (1966) classic study. Bamberger apparently conducted a survey of state and local
legislators, counselors and offices of the Attorneys General for their opinions on the
roles of the different branches of government in the review of laws for constitutionality.
The case studies Bamberger has selected are all, for the most part recent,
controversial pieces of legislation: the 1995 Communications Decency Act (CDA); the
Indianapolis and Minnesota pornography ordinances primarily drafted by Catherine MacKinnon
and Andrea Dworkin; the Tennessee Obscenity Act of 1978; the New York school districting
legislation held
unconstitutional in KIRYAS JOEL v. GRUMET (1994); a family planning law in Missouri
seeking to bar Planned Parenthood from receiving state funding; section 3501 of the
Omnibus Crime Control and Safe Streets Act of 1968, purporting to overturn MIRANDA, a
statute that was addressed after the book's publication by the Supreme Court in DICKERSON
v. UNITED STATES (2000) and the Religious Freedom Restoration Act (RFRA), held
unconstitutional by the Supreme Court in CITY OF BOERNE v. FLORES (1997). These case
studies are well presented, and Bamberger has grouped them into general categories to
explain the different ways in which a legislature can shirk its constitutional duty. For
example, legislators can pass laws they "know" will be unconstitutional.
Alternatively, a legislature can continually revise statutes previously held
unconstitutional in an effort to "mollify the courts," or can simply rewrite a
constitutionally troublesome statute in an
attempt to camouflage the issue of constitutionality rather than address it. (p. 141).
However, ultimately RECKLESS LEGISLATION is unpersuasive because of Bamberger's unspoken
assumptions about the courts that color his analysis. Although Bamberger speaks
approvingly of the "tripartite" theory of constitutional governance in which
each of the three branches has a separate duty to assess a law's constitutionality, in
practice this seems to mean that the other branches review proposed legislation only
according to whether it will receive Supreme Court approval. Bamberger is not clear
whether the executive or legislature can have an independent basis for disagreeing with
the Court's pronouncements on a legal issue, whether or not the Supreme Court has already
in fact decided the issue in the context of the proposed law.
Indeed, in the case of the debates over RFRA, Bamberger reluctantly acknowledges that the
Congress had heard respected scholars on the
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proposed statute, yet he still condemns the legislature because, "both the language
of the RFRA itself and the debate leading to it challenged the constitutional prerogatives
and supremacy of the Supreme Court" (p. 166) -- so much for his defense of the
tripartite theory. The fairness of his account is also marred by his negative and
unnecessary comments about "the religious right" or his opinion that censorship
is a always a product of "elitism."
Similarly, although Bamberger rightly notes the troubling practice of some state
legislatures of passing wide-ranging laws with less than full hearings, even where there
were hearings Bamberger pronounces them "inadequate," precisely because they
failed to confirm the Court's understanding of the issue at hand. Bamberger criticizes
legislators for ignoring Court precedent in crafting legislation. Yet, he also criticizes
efforts like those in Tennessee for writing anti-pornography statutes using the Court's
own language - under pressure from the religious right, of course. Even if the hearings
were adequate, this does not affect Bamberger's central point - that the legislatures must
obey the Supreme Court, whatever the legislative factfinding may discover. Although
Bamberger rails against legislators who "abandon" their duty by letting the
courts decide the issue
of unconstitutionality, he does not consider the possibility that those actions of the
legislature may be part of a proper tension between a legislature that seeks to push the
courts along in a particular direction, and a judicial branch with the responsibility to
review statutes and, if appropriate, to change its mind about their constitutionality.
In the end, therefore, RECKLESS LEGISLATION addresses an important governmental issue,
but it fails to break out of an excessively court-centered perspective in analyzing the
issues raised by the interplay between the legislatures and the courts in adhering to
their constitutional functions. Rather than address the factors that cause legislators to
"ignore" their oath, Bamberger in fact explains the attitude that has helped to
deprive the legislative branch of an incentive independently to uphold the
Constitution.
REFERENCE:
Donald G. Morgan. (1966). CONGRESS AND THE CONSTITUTION: A STUDY OF
RESPONSIBILITY. Cambridge: Belknap Press of Harvard University Press,
CASE REFERENCES:
CITY OF BOERNE v. FLORES, 117 S. Ct. 2157 (1997).
DICKERSON v. UNITED STATES, 120 S. Ct. 2326 (2000
KIRYAS JOEL v. GRUMET, 512 U.S. 687 (1994).
PLANNED PARENTHOOD v. CASEY, 505 U.S. 833 (1992).
Copyright 2000 by the author, by Gerald J. Russello.