Reviving Legislative Generality

Abstract

The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it has been linked to corruption and undermines the role of the judiciary. But the Court’s weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that is, a principle that legislation should be disfavored as suspect simply because it singles out identifiable individuals for special treatment.

In this article, I argue that the value of legislative generality should be enforced as an independent constitutional principle. Three pillars – history, text, and philosophical considerations – support the conclusion that legislative generality is a principle of constitutional significance. First, the history of the revolutionary period leading up to the framing of the Constitution suggests that a key purpose of the Constitution was to address evils associated with special legislation. Second, the Constitution contains a number of under-enforced clauses that, when read together and in context, delineate a norm of legislative generality. Third, an interpretation of the Constitution that includes a value of legislative generality fits well with a number of philosophical traditions and leads to normatively attractive results. Together, these pillars support the conclusion that legislative generality is a value with constitutional weight and suggest that current constitutional doctrine should be modified to give effect to this principle. I conclude by calling for heightened judicial scrutiny over special legislation that offends the value of legislative generality, including contemporary special legislation in the areas of immigration, public benefits, and criminal law.

Keywords: Legislation, Special Legislation, Constitutional Law, Constitutional History, Bills of Attainder, Ex Post Facto Laws, Titles of Nobility