A Useful Book on the Phenomenon of Unconstitutional Lawmaking
Rutgers University Press · 2000 · 224 pages · $32.00
Reviewed by George C. Leef
Legislators have been enacting laws that trample on constitutional rights for a long time. The United States had barely entered the nineteenth century when Congress gave us the Alien and Sedition Acts, for example, a blatant attack on the right of free speech. And they have been at it ever since. Rare indeed is the elected official who will vote against proposed legislation thought to have widespread appeal among voters just because he knows that it’s unconstitutional.
In Reckless Legislation, attorney Michael Bamberger has written a useful book on the phenomenon of unconstitutional lawmaking. He regards it a “dereliction of duty” for legislators to pass politically popular bills with little or no regard to their probable constitutional defects, and rejects the common excuse that it is the job of the courts to decide whether legislation is unconstitutional. Punting constitutional questions has, Bamberger argues, politicized the courts “by transferring many of the most contentious political and social issues of our times to the courts for resolution.” If the law is struck down, its champions then complain about “judicial activism.”
Judicial activism is nothing to complain about as long as the judges have their principles right, but often they don’t. Even when the case has a good outcome, however (that is, the attack on people’s rights is declared null and void), there is the problem of the cost of fighting to uphold those rights. Bamberger correctly observes that once the government has enacted the unconstitutional legislation, the cost of battling to have it overturned usually falls on private parties, who must confront the bottomless pit of government legal resources. The cavalier “we’ll just let the courts decide” attitude is one that imposes significant burdens on the affected people.
A good example Bamberger gives is the war over anti-obscenity laws that has raged in several cities, including Indianapolis and Minneapolis. Local governments, following the arguments of militant feminist law professor Catharine MacKinnon, enacted prohibitions on the sale of anything “pornographic,” on the grounds that somehow inanimate objects can “discriminate against women.” When the obvious question of constitutionality was raised, who was invited as the legal expert on the matter? Naturally, MacKinnon herself.
The ordinances were swiftly struck down in the courts. City council members got to feel good and probably enjoy some political benefits for having tried to “clean up the city,” while the costs were borne by others.
The book disappoints, however, in that it doesn’t hit at the major-league assaults on our constitutional rights, such as the Frankensteinian Americans With Disabilities Act; rather, Bamberger strains to fill the book up with insignificant little gremlins. For example, he devotes part of a chapter to a Missouri abortion defunding case.
The Missouri legislature, in a fight between pro-life and pro-choice factions, voted to keep state funds from going to Planned Parenthood. Bamberger looks at the case as an unconstitutional instance of “punishing” an organization for its views. But government funding is not a right, and a decision not to continue to provide it is not “punishment.” Our jurisprudence is in a sad state when legislatures can’t vote to stop squandering the taxpayers’ money.
Bamberger suggests several remedies—advisory opinions from the courts, expedited review, suits for declaratory judgment, and bringing test cases—and finds that none is more than a slight palliative. The only real solution, he maintains, would be for legislators to take their oaths of office seriously and stop enacting laws with obvious constitutional defects. I couldn’t agree more, but as Milton Friedman once said in another context, “That’s like asking for water that runs uphill.”
