A Moment of Reflection on Deference to Legislatures
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To review: One of two arguments against non-deferential standards of judicial review (a/k/a "activist judges") is that a legislature is better equipped to research policy questions. Congress — or a state legislature or town council or school board — can hold committee hearings, conduct field research, prepare detailed reports and debate legislation to a far greater extent than a judge or panel of judges ever could.
(The second argument — that elected legislators better reflect the "will of the majority" — is irrelevant to this post. For a sample of my thoughts on that premise, see here.)
The problem, quite frankly, with "legislators can research issues better than judges" is that "can" is not synonymous with "do." To assume that politicians actually do their homework, or base their votes on such research, naively assumes facts not in evidence.
Indeed, "homework" (i.e., public education) is a great example:
Such processes and outcomes are, of course, the rule and not the exception. This legislative embarrassment is merely a compact, uncomplicated example. But rest assured: it happens all the time, in every legislature, on almost every vote.
So remind me again why judges should defer to it?
(Via Religion Clause.)
(The second argument — that elected legislators better reflect the "will of the majority" — is irrelevant to this post. For a sample of my thoughts on that premise, see here.)
The problem, quite frankly, with "legislators can research issues better than judges" is that "can" is not synonymous with "do." To assume that politicians actually do their homework, or base their votes on such research, naively assumes facts not in evidence.
Indeed, "homework" (i.e., public education) is a great example:
Most legislators thought it was a terrific idea last fall when they required students in Illinois schools to have a moment of silence to pray or reflect, but House lawmakers now think they could have used a few more moments for reflection themselves before they put the law in place.A bill that was: (a) in no way urgent; (b) micromanaging a major governmental activity (public education), and (c) constitutionally suspect, was passed (and also veto-overridden) without any "deference-deserving" legislator taking the time to actually ask teachers and educrats what they thought or how they would respond to such a bill. (Or, alternatively, these activist legislators simply didn't care about what teachers and educrats thought. Was this a pro-education bill or a pro-theocracy bill disguised as a pro-education bill?)
The House voted Tuesday to reverse the requirement after getting an earful of complaints from school administrators and teacher unions who found the requirement poorly thought out and unenforceable.
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Chicago Public Schools spokesman Mike Vaughn said the district supports [the proposed reversal]. "We don't consider a moment of silence a good use of classroom time and don't plan on implementing one in our district," he said.
Such processes and outcomes are, of course, the rule and not the exception. This legislative embarrassment is merely a compact, uncomplicated example. But rest assured: it happens all the time, in every legislature, on almost every vote.
So remind me again why judges should defer to it?
(Via Religion Clause.)
Related Posts (on one page):
- A Moment of Reflection on Deference to Legislatures
- In Defense of "Anti-Fundie Fundies"
Posted by Kip on
5 March 2008
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