43 Pages Posted: 8 Dec 2007
This article analyzes how the Court should treat legislative views of social facts when such facts provide an essential foundation for the constitutionality of legislation. We reject the notion, which the Court often but inconsistently deploys, that it should treat legislative views of the facts more deferentially than legislative views of the law.
Displacing the judiciary from an independent, de novo fact-finding role must depend either on the argument that law is inherently different from fact or that Congress has a greater comparative advantage vis-á-vis the judiciary in finding social facts than in assessing the law. Neither is supportable. There is no analytic dichotomy between law and fact. Law is a social fact.
Thus, the key question about whether the judiciary should defer to Congress' fact-finding or rely on its own assessment of social facts is functional. If Congress had a superior ability to find facts, deference might make sense. But we show that Congress' fact-finding abilities are less capacious and more biased than those in the judiciary. As an elected body, Congress is designed to respond to its constituents' subjective desires, not to the objective facts of the world. In contrast, the judiciary is insulated from the preferences of constituents and less subject to partisan bias. Its salient institutional structure is the adversarial proceeding where each side has incentives to scrutinize relentlessly the factual claims of its opponent. Accordingly, the judiciary would appear to be a superior fact-finder both because of its institutional capacity and in its relative lack of bias.
The separation of powers also supports a de novo judicial role in fact-finding. It is now well established that each branch of government has the responsibility to measure the text of legislation against the Constitution. By similar logic, each branch has the independent obligation to determine whether facts support the constitutionality of legislation.
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