Oliver A. Houck, Things Fall Apart: a Constitutional Analysis of Legislative Exclusion

• Publication year: 2006

EMORY LAW JOURNAL

Volume 55 2006 Number 1

ARTICLES

THINGS FALL APART: A CONSTITUTIONAL ANALYSIS OF LEGISLATIVE EXCLUSION

Oliver A. Houck^*

Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the centre cannot hold;¹

In recent years the Congress has begun a practice of excluding minority party members from the development of legislation on the basis of their party affiliation and point of view. The practice arises in partisan times-states in red and blue, policies in black and white, vocabularies from the roadhouse bar²-and while it is debatable whether the government is leading or following

Id. this parade it has clearly participated to the extent that one longs for a therapist who would simply advise: Talk to each other.³For the legislative branch it is more than good advice. It is the premise of the Constitution.

Granted, hopes for an harmonious Congress faded early in our history⁴and, today, representatives and their political parties are expected to deal with each other on a daily basis while jockeying for position with campaign contributors, the media, and the public at large.⁵Tensions rise in both chambers, but they are aggravated by the nature of the House of Representatives whose members are perpetually running for reelection and where, closer to national mood swings, they can "genuinely hate each other."⁶A highwater mark was reached in the 108th Congress with legislation on energy and Medicare.⁷These were momentous bills: complex, expensive, and controversial.⁸The answer of the majority party in one case was to exclude members of the minority party from the process of writing the legislation, and in the other to exclude all members who held opposing views. Debate on the final bills was severely restricted. As a practical matter, legislative discourse was over. Indeed, it never occurred. Similar exclusion of minority party members followed in bills treating federal aviation, tax, intelligence reform, and the annual budget.⁹

None of which would matter more than men behaving badly in any other venue,¹⁰except that as an institution they are passing laws that will change the country through a practice that stifles and is intended to stifle discourse, minority members, and opposing points of view.¹¹The question is whether this practice is bounded by the Constitution. The answer proposed by this Article begins with perspectives on democratic decision making of the Framers and others who formed part of their thinking. It next turns to the American legislative process and the rise of legislative exclusion. It then applies three constitutional doctrines: the First Amendment, Equal Protection, and Due Process. It concludes that legislative exclusion is vulnerable under each analysis, but the one that best fits the problem, albeit with the least applicable precedent, is due process of law.

I. LEGISLATIVE INCLUSION

[T]he public good is disregarded in the conflicts of rival parties . . . [producing decisions] not according to the rules of justice and the rights of the minor party, but by the superior force[s] of an interested and overbearing majority.

-James Madison¹²

Perhaps no circumstance short of armed conflict reveals human beings so fully as a legislature. And perhaps no question has proven more knotty to political science than how to govern a body with such power to do good and ill. Opinions diverge, sharply, on our expectations of legislative bodies, ranging from highly aspirational notions of public service to markets in which the strongest bidders simply get their way.¹³One notion that permeates all literature and experience, however, is that legislatures are places where elected representatives engage in a give-and-take that produces public policy. They may appeal to reason, they may resort to blackmail, they may bully, exaggerate, conceal and lie, they may hate their counterparts and try to eliminate them from office, but they deal with each other. That is the expectation of civic republicans, pluralists, and public choice theorists. This duty-to-deal is what distinguishes a legislature from a touch-screen television poll. It is, further, the expectation that this dealing, in and of itself and on whatever basis, even on opposing bases that are crassly self-interested, produces better and more legitimate public policy.

These are no transient notions. From some of the more recognized voices: ARISTOTLE: "[W]hen . . . all come together . . . they may surpass- collectively and as a body, although not individually-the quality of the few best. . . . [When there are many who contribute to the process of deliberation, each can bring] his share of goodness and practical wisdom

. . . some appreciate one part, some another, and all together appreciate all."¹⁴

PERICLES: "[W]e Athenians . . . [I]nstead of looking on discussion as a stumbling-block in the way of action, we think it an indispensable preliminary to any wise action at all."¹⁵

MILTON: "Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinions in good men is but knowledge in the making."¹⁶

HUME: "Factions subvert government, render laws impotent, and beget the fiercest animosities among men of the same nation."¹⁷

BURKE: "Parliament is a deliberative Assembly of one Nation, with one Interest, that of the whole; where not local Purposes, not local Prejudices ought to guide, but the general Good, resulting from the general Reason of the whole."¹⁸

MILL: "Wrong opinions and practices gradually yield to fact and argument:

. . . [W]e are far enough from certainty still; but we have done the best that the existing state of human reason admits of."¹⁹

It is no surprise, then, that these ideas were central to the construction of the Constitution and its defense in the Federalist Papers. While John Jay assumed that national representatives would, of their own accord, rise above factional interests ("proceed[ing] with moderation and candor to consider and decide on the means most proper"),²⁰James Madison and Alexander Hamilton sought more pragmatic mechanisms to ensure these results. Their genius, of course, is that they found them. A primary mechanism was the counterbalance of competing factions which, left unchecked, would tear the republic apart. In the division of labor represented by the Federalist Papers, the explanation of this mechanism was left largely to Madison. His observations resonate today with particular relevance:

Factions were dangerous:

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.²¹

Majority factions led to their own despotism:

It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. . . . If a majority be united by a common interest, the rights of the minority will be insecure.²²

Unfortunately, factions were also an inevitable part of democracy:

Liberty is to faction what air is to fire.²³

Democratic elections, by themselves, would not cure the problem:

I shall here, perhaps, be reminded of a current observation "that where annual elections end, tyranny begins."²⁴

The answer was a lawmaking body sufficiently diverse to check the majority:

[More representatives provide] greater security [through] a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest. . . . [This diversity presents] greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority[.]²⁵

Hamilton agreed:

[F]or the very reason that this [a larger and more diverse legislature] will be an emanation from a greater variety of interests . . . it will be much less apt to espouse either of them with a decided partiality.²⁶

Majority "excesses," Hamilton continued, were the problem:

In the legislature, promptitude of decision is oftener an evil than a benefit. The differences of opinion, and the jarrings of parties in that department of government [as opposed to the executive], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection; and serve to check excesses in the majority.²⁷

Thomas Jefferson agreed as well:

All too will bear in mind this sacred principle that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect and to violate would be oppression.²⁸

Have we missed anyone?²⁹Not by design. The coincidence of minds on this issue, among men who disagreed so completely on others, is confirming. Whatever other interpretations may be offered about the "intent of the framers," (1) they rejected a model dominated by majorities,³⁰(2) they saw factions, and in particular majority factions, as a danger to be checked,³¹and (3) they saw the legislature as a place where factions would check each other through diversity and interaction.³²These were their assumptions and their game plan.³³

Of course, things do not always turn out as planned. Several features of the Constitution deemed key to its success have atrophied in practice or been amended outright.³⁴And whatever the Framers' expectations of diverse interests competing for legislative policies, America soon evolved towards a two-party system and has maintained it with few successful exceptions. Perhaps most disappointing to them, were they able to witness the spectacle, would be that today's legislatures have remained as self-interested and dominated by factions as ever, which has led to a respectable body of literature reexamining Constitutional history and calling for some form of legislative order: legislative due process.³⁵As a whole, and its several critics notwithstanding, this literature makes a strong...