Judicial Review Standards in Unicameral Legislative Systems: a Positive Theoretic and Historical Analysis

• Jurisdiction: United States,Federal
• Citation: Vol. 33
• Publication year: 2022

33 Creighton L. Rev. 65. JUDICIAL REVIEW STANDARDS IN UNICAMERAL LEGISLATIVE SYSTEMS: A POSITIVE THEORETIC AND HISTORICAL ANALYSIS

Creighton Law Review

Vol. 33

JAMES R. ROGERS(fn*)

INTRODUCTION

Courts reviewing the constitutional reasonability(fn1) of ordinary Nebraska statutes(fn2) apply the same deferential review standards as courts that review similar laws in other states.(fn3) This is inconsistent with the implications of Nebraska's legislative exceptionalism - the unicameral legislature.(fn4) The impact of eliminating a second legislative chamber extends beyond the legislature itself and necessarily affects the relationship between the legislature and coordinate branches of government. Drawing on the historical expectations of unicameral reformers and on modern positive political theory,(fn5) this article argues that eliminating a second legislative chamber implies the compensatory need for heightened judicial review standards under constitutional reasonability requirements relative to the standards courts apply in bicameral systems. While this conclusion is immediately pertinent to the choice of review standards in Nebraska, it also has implications for the growing number of states actively considering the unicameral reform,(fn6) as well for the 126 countries that currently have unicameral national legislatures.(fn7)

The discussion is organized as follows. Part I briefly surveys the history of cameral choice in the United States and contrasts George Norris's tendentious characterization of the origins of American bicameralism with the conclusions of modem historians. Part II revisits the now forgotten expectation of unicameral proponents that heightened standards of judicial review would at least partially compensate for the elimination of the review accorded to legislation by second chambers in bicameral systems. Part III then develops two simple positive theoretic models that show that unicameral legislatures produce legislation that is more constitutionally suspect than bicameral legislation along two dimensions: (1) Statutes enacted by unicameral legislatures are more likely to pursue constitutionally illegitimate purposes than are statutes enacted by bicameral legislatures; and (2) statutes enacted by unicameral legislatures are more likely to employ "unreasonable" statutory means to pursue their ends than are statutes enacted by bicameral legislatures.

Taken together, Parts II and III show that dispensing with the check on legislation provided by second chambers means that other branches of government have to assume the review tasks once performed by the eliminated chamber. Progressive-era unicameralists argued that judicial oversight would be one important substitute in unicameral systems for the check and balance provided by second chambers in bicameral systems. The positive theoretic models then identify the particular dimensions appropriate for heightened judicial scrutiny. The models map directly onto the means/end inquiry applied by U.S. courts to review the reasonability of state statutes under federal and state equal protection and due process guarantees. On both historical and process grounds, the analysis shows that in order for Nebraska to obtain levels of statutory reasonability comparable to those obtained in bicameral systems, courts must provide a higher level of scrutiny when reviewing its unicameral enactments than when they review bicameral enactments. Part IV then offers a preliminary discussion of the level of heightened review that might be warranted given the suspected constitutional infirmities of statutes enacted through a unicameral process. Finally, Part V discusses whether there might be any process advantages to unicameralism that would offset the need for heightened judicial review in unicameral legislative systems.

PART I. THE HISTORY OF CAMERAL CHOICE IN THE U.S.

This section briefly surveys the history of cameral choice in the United States from colonial times up to current proposals in state legislatures. We then consider George Norris's bicameral historiography. Much of Norris's criticism of bicameral process stems from his failure to recognize, as modern historians have, that the "republican" bicameralism of U.S. states - when both chambers share the same electors - is fundamentally different from the "classical" or "mixed government" bicameralism practiced in Britain, where chambers are allocated to different economic or political classes. Carefully distinguishing between the different forms of bicameralism is important in order to characterize accurately the existence and significance of unicameralism's constitutional weaknesses relative to bicameralism.

A. CAMERAL CHOICE AND STATE CONSTITUTIONAL POLITICS

When Nebraska's unicameral legislature met for the first time early in 1937, it had scarcely been 100 years since the meeting of the last state unicameral legislature in Vermont. From the earliest days of the American colonies up through today's headlines, legislative cameral reform has been a regular, if periodic, component of state constitutional debates. The earliest colonies typically legislated with some form, however ambiguous, of unicameralism. These early governments had no strict separation of powers and, in a mixture of legislative and executive authority, colonial representatives assembled together with the governor and his council.(fn8) These colonial representatives initially had no formal powers, but rather served only to provide advice and information to the executive. Throughout the late 17th and early 18th centuries, a form of bicameralism gradually developed as colonial representatives struggled for and won the right to sit independently of the governor's council, the right to initiate laws relating to the internal government of the colony,(fn9) and the preroga-tive to set internal taxes.(fn10) Because the executive councils of that era acted sometimes in an executive capacity and sometimes in a legislative capacity, it is not entirely clear whether they should be unambiguously identified as second legislative chambers.(fn11) Nonetheless, because these upper chambers exerted legislative authority and evolved into legislative chambers upon independence from Britain, commentators tend to identify most pre-Revolutionary colonial legislatures as bicameral in form.(fn12)

During the Revolutionary era, Georgia, Pennsylvania, and Vermont all adopted unicameral legislatures. More than any other state of the era, Pennsylvania's debate over cameral choice reached a high level of maturity and refinement, and its rejection of unicameralism in its 1790 constitution set an influential example for other states.(fn13) Georgia adopted bicameralism in 1789, and Vermont, waiting another forty-five years, adopted a second legislative chamber in 1836.(fn14) All states subsequently joining the union (including Nebraska) entered with bicameral legislatures.

While unicameralism continued to be of interest to political philosophers during the nineteenth century,(fn15) it was not until the Progressive era in the United States that cameral choice once again received sustained attention at the level of ordinary state constitutional politics.(fn16) A flurry of proposals then burst onto the national scene. As early as 1912, Oregon voters considered and rejected, by an electoral margin of better than two to one, a constitutional amendment proposing a 60-member unicameral legislature for the state.(fn17) The next year, the California senate considered and rejected a proposal to create a single, forty member legislative chamber. In 1915, the Alabama legislature considered a constitutional amendment to create a unicameral legislature, but that, too, failed to obtain the requisite support in the legislature.(fn18) In the same year, Governor George W. Hunt of Arizona advocated the adoption of a unicameral legislature for his state. The next year Arizona voters nonetheless rejected a unicameral initiative proposal by a margin of almost two to one.(fn19) At least twelve other states considered unicameralism prior to 1920 in some official capacity.(fn20) All totaled, over one-third of the states had accorded official consideration to unicameralism prior to 1920. Nonetheless, all proposals for reform were defeated. In perhaps the closest loss of the period, Oklahoma voters, who voted on a 1914 unicameral initiative, supported the measure with over fifty-eight percent of the vote (99,686 in favor and 71,742 opposed). The amendment did not win approval, however, because of the Oklahoma requirement that measures garner a majority of all votes cast. Over 75,000 Oklahoma voters who cast ballots in that election abstained from indicating a preference on the unicameral initiative. Consequently, the measure needed almost 25,000 additional votes for success. During the 1920s, unicameral proposals continued to be considered throughout the states, albeit at different levels of seriousness. None succeeded.

Nebraska considered, and rejected, proposals for unicameral reform at least six times prior to its success in 1934. A joint legislative committee first proposed the consideration of unicameralism for Nebraska in 1913.(fn21) A majority of the legislature voted in 1915 to hold a referendum on a constitutional amendment to adopt a one-chamber legislature, but it failed to receive the requisite supermajority required to submit the amendment to...