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.
Page 465 begins here
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
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
Page 466 begins here
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
Donald G. Morgan. (1966). CONGRESS AND THE CONSTITUTION: A STUDY OF
RESPONSIBILITY. Cambridge: Belknap Press of Harvard University Press,
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.