Constitutional Fictions: A Unified Theory of Constitutional Facts.

• Author: Bryant, A. Christopher
• Position: Book review

CONSTITUTIONAL FICTIONS: A UNIFIED THEORY OF CONSTITUTIONAL FACTS. By David L. Faigman. (1) Oxford University Press. 2008. Pp. xiii + 230. $65.00.

INTRODUCTION

In Gonzales v. Carhart, the Supreme Court sustained the constitutionality of the federal Partial-Birth Abortion Ban Act without overruling its decision seven years earlier invalidating a nearly identical Nebraska law. (3) In doing so, the Court sided with, though conspicuously did not defer to, Congress's factual finding that the banned procedure was virtually never medically necessary, rejecting the contrary conclusion of all six lower federal courts confronted with challenges to the federal law. The ruling shone a spotlight on the methods, or lack thereof, that the Court employs in receiving evidence and resolving disagreements about questions of legislative facts in constitutional cases.

The ruling was merely the most recent of numerous cases in which the result turned on disputed questions of legislative fact. Examples from the Supreme Court's last decade can be found in nearly every substantive area of constitutional law, including the dormant commerce clause, the scope of congressional power to regulate interstate commerce and enforce the Fourteenth Amendment, the requirements of the due process and the equal protection clauses thereof, as well the freedoms of religion and expression. Moreover, the centrality of legislative facts to constitutional litigation is nothing new. To some extent their significance is an inevitable corollary to judicial review, which makes all the more astounding the judiciary's failure to establish a consistent or coherent approach to resolving questions of legislative fact. Over the course of the last century, few issues have more persistently or profoundly perplexed judges than how they should address questions of legislative fact when reviewing the constitutionality of a challenged statute.

Nor has the subject received the kind of sustained scholarly investigation its import clearly merits. Though the problem is a ubiquitous and recurring one, scholarly efforts to solve it tend to come in waves, several scholars addressing the question during a brief span of time (often in response to one or two salient decisions) and then ignoring the matter for years. But an issue that implicates the very legitimacy of judicial review ought not be ignored. So David Faigman's Constitutional Fictions: A Unified Theory of Constitutional Facts merits celebration for taking up such an important and too-often neglected subject.

His book should be celebrated for more than its topic, however. Constitutional Fictions does the legal profession an invaluable service by identifying and articulating the many frequently unspoken questions that arise in the context of judicial consideration and resolution of facts, especially legislative facts, in constitutional cases. The book also documents the largely unremarked ubiquity of these questions, the wide variety of circumstances in which they occur, and the depth of the theoretical issues they implicate. These are not mean achievements, as they outstrip the occasional efforts of some of the most distinguished legal scholars of the past century. Professor Faigman accomplishes all this in crisp, lucid, and admirably concise prose. Nor could Professor Faigman's book be more timely. Several of the Roberts Court's most salient and controversial constitutional decisions have turned on questions of legislative fact.

Constitutional Fictions treats an important topic with impressive insight and grace. But it will not be the last word on the subject. Professor Faigman may have planned an exhaustive study, but instead the subject appears to have exhausted him. When Constitutional Fictions finally comes round to normative and prescriptive analysis of the status quo, Faigman shies away from the broader implications of his critique. As he acknowledges, the Supreme Court has been unpardonably opaque and inconsistent in its treatment of questions of legislative fact in constitutional cases. These are not venial judicial sins.

But Faigman proves too tolerant of the Court's disarray and the resulting judicial freedom from constraint. Ultimately he concludes that meaningful judicial review makes much of this indeterminacy inevitable. Implicit in this reasoning is an excessively muscular conception of judicial supremacy, or even exclusivity, in the implementation of the Constitution. After briefly reviewing Faigman's arguments, this essay explores how other models of the roles different institutions properly play in constitutional practice might compel more sweeping changes than he suggests.

Part I of this essay situates Constitutional Fictions within the pre-existing scholarly framework. The second Part then summarizes the book's substantial contributions towards greater recognition and understanding of the present doctrinal disorder concerning legislative facts in constitutional cases. Part III identifies issues with, and alternatives to, present judicial practices not addressed in Constitutional Fictions, in the hopes of compiling a catalog of questions for future research.

1. PRIOR EFFORTS

   To appreciate fully Faigman's distinctive contribution, it must be assessed in the context of the pre-existing treatments of the subject; hence this Part briefly canvases those efforts. The implications of judicial determination of legislative facts (4) in constitutional cases first garnered scholarly attention in the wake of the Supreme Court's decision in Lochner v. New York. (5) Lochner of course served as precedent for judicial disapproval of numerous Progressive Era efforts to regulate wages, hours, and working conditions in an increasingly industrialized American economy. (6)

   In 1916 then-Harvard law professor Felix Frankfurter published a survey of judicial rulings on the validity of laws limiting working hours. (7) He concluded that "study of these opinions indicates a change not only in the decisions but in the groundwork of the decisions," adding that the "turning point comes in 1908 with Muller v. Oregon." (8) The future New Dealer and Supreme Court Justice wrote in his typically self-assured fashion. Nevertheless he failed to hide his fundamental ambivalence about the judicial determination of legislative facts in constitutional decisions. Describing a trend towards greater judicial receptivity to maximum hours laws, which he ardently applauded, he came close to endorsing a minimalist and highly deferential judicial role in addressing such matters. He noted that a chief virtue of the more recent rulings was that they recognized that questions concerning the propriety of limits on hours of labor were matters of degree "solely for the legislator." (9)

   But elsewhere in the essay, Frankfurter assiduously preserved a substantial role for courts in re-examining the factual basis for such legislation. He stressed the value and necessity of Brandeis briefs such as those Louis Brandeis himself famously filed in Muller. Ultimately, he explicitly declined to choose between judicial abdication and judicial reinvestigation characterized by what he described as attention to "scientific" principles: "either the legislative judgment should be sustained if there is no means of judicial determination that the legislature is indisputably wrong, or the Court should demand that the legislative judgment be supported by available proof." (10) Frankfurter concluded his survey with an optimistic prophecy that once the factual nature of these kinds of controversies became apparent, the legal profession would bring to bear its formidable resources and resolve the conundrum in some way not yet apparent to him. Ninety-three years later, Frankfurter's hopes have not been fulfilled.

   To be sure, others have tried. Writing in the Harvard Law Review nine years deeper into the Lochner Era, Henry Wolf Bikle focused on cases in which the constitutionality of legislation depended upon the courts' assessment of "some question of fact which the statute postulates or with reference to which it is to be applied." (11) Professor Bikle acknowledged that judges' legal expertise did not accord them any inherently greater aptitude to determine such questions than that enjoyed by the proverbial man in the street. (12) He postulated further, perhaps with Frankfurter's earlier commentary in mind, that "a substantial part of the criticism which has been leveled against [judicial review was] due to the fact that decisions have been made which turn on the resolution of these underlying questions of fact." (13)

   After listing the various ways, ranging from a priori reasoning to reliance on findings made by state supreme courts, that the U.S. Supreme Court had resolved such questions, Bikle urged the Court to uphold statutes unless the formal record of judicial proceedings included proof of facts showing the law to be unconstitutional. (14) Recognizing that scrupulous adherence to such requirements could swamp the federal courts, Bikle suggested that some "machinery" be established whereby such questions could be explored and pertinent factual records could be compiled before the matters found their way to federal court. Bikle pointed to the proceedings before the Interstate Commerce Commission as a possible model. Of course, as to many economic, industrial, commercial, and environmental activities, Bikle's proposal has proven prophetic, insofar as the Administrative Procedure Act (15) provides for judicial oversight of the massive federal bureaucracy currently regulating such matters. Far from all constitutional litigation flows through these channels, however. And the Court has never bound itself to the kind of "on the record" requirement Bikle proposed.

   So the issue Frankfurter and Bikle addressed not only outlived them but was fueled by the rise of the administrative state. Accordingly, after a period of neglect, the issue was again taken up, albeit...