Berkeley Law

In recent years, the Supreme Court has expanded its review of the legislative record when evaluating the constitutionality of statutes that limit the rights or powers of states. Most recently, in Board of Trustees v. Garrett (121 S.Ct. 955, 2001) the Court again sought to limit Congress by reviewing the legislative record to determine whether Congress had discovered a pattern of state misconduct that warranted an infringement of the states immunity from private law suits. We evaluate the emerging theory of due process of lawmaking that justifies the Court's scrutiny of the legislative record. To date, the emerging theory lacks an adequate conceptualization of legislative actors, has an excessively narrow definition of the legislative record, and appears to reflect an inaccurate view of deliberation and the legislative process. While the Congress has the capacity to meet the Court's expectations for evidence gathering, Congress cannot and will not meet the Court's implicit assumptions about deliberation. Some models of the due process of lawmaking have merit, but the review of the deliberative process is unlikely to succeed.