The Heretical Imperative of “Due Process of Lawmaking"

Hans Linde’s 1975 article “Due Process of Lawmaking” urged that the conventional doctrinal requirement that courts discern a statute’s rational means and the legislature’s proper purpose presents several jurisprudential and doctrinal problems that make judicial review of legislation a lawless endeavor. Properly applying the Due Process Clause with equal force to the legislative process to “confine political irrationality” required establishing certain procedural minimums essential for making valid laws. Under Linde’s concept, courts would be required to invalidate laws enacted without regard to these minimums: “due process in lawmaking in many, if not all, respects is a very concrete, well understood set of institutional procedures.” Linde’s “heresy,” he said, was his theory’s insistence on courts “judg[ing] legislation as a process, not a product”—requiring courts to invalidate salutary or validate unsalutary enactments based on procedural compliance rather than substantive rationality. This, Linde argues, was necessary to preserve the legitimacy of legislative procedure in a deliberative democracy.

Linde’s theory has long been overlooked by legislative lawyers, judges, and legal scholars, perhaps because he did not fully develop his theory and assumed, without fully examining, many details of his theory. One particular failing is that Linde never examined in detail why and how state constitutional provisions governing legislative procedure were part of the accepted institutional procedures that he said afforded due process in lawmaking. This paper takes up where Linde left off by examining precisely how state constitutional provisions governing legislative procedure (“constitutional rules”) provide concrete and understood minimums for lawmaking. First, this paper outlines the key features of Linde’s argument and considers the few contributions made by judges and scholars since the paper was first published. It further develops and uses Terry Sullivan’s 1984 taxonomy along doctrinal lines to classify constitutional rules and identify those governing admissibility and decisiveness, which I suggest comprise the core institutional procedures of due process. The germaneness rule and its corollary the rule against general legislation in an appropriations bill are selected as case studies, and their theoretical basis, historical development, legislative application, and judicial interpretation are traced.

Next, the rules are evaluated in terms of affording standards for legitimate lawmaking that respect both the power of political majorities and the rights of political minorities. It shows how the rules shape a richly complex legislative process that operates rationally in shaping legislator choices expressed in the final statutory text. This process shares similarities with both executive and judicial decision-making, and legislators and other political actors understand the rules in this way; importantly, judges can use traditional methods of legal reasoning and inquiry to understand the rules in this way as well. Finally, the paper argues that Linde’s “heresy” is not only a positive theory of how judges can participate in guaranteeing “democratic legitimacy of political decisions,” by acknowledging legislative procedure as due process but that it is a practical imperative because it honors those practices that constitute the political architecture of, and membership in, liberal, representative democracy.