Legislative Deception, Separation of Powers, and the Democratic Process: Harnessing the Political Theory of United States V. Klein
Redish, Martin H., Pudelski, Christopher R., Northwestern University Law Review
Some Supreme Court decisions withstand the test of time. They are universally recognized as the fulcrums of modern constitutional law, even if they were decided before the turn of the prior century. If students learn nothing else in their constitutional law courses it is the names (if not the actual holdings) of these decisions. A few of these decisions are known primarily because we love to hate them.1 In contrast, there are numerous Supreme Court decisions that are effectively buried, even before the Justices who authored them are buried themselves.
There also exists a third, less easily described category of Supreme Court decisions that are not readily classifiable under either of the other headings. They are not nearly as well known as the doctrinal giants of constitutional law. Nevertheless, they generally receive respectful, if not extensive treatment in the casebooks, largely because there is a widely shared sense that they are somehow of substantial significance in the flow of American constitutional or political theory. The problem, however, is that no one is exactly sure how or why.
United States v. Klein1 is just such a decision. It is a case whose importance to the shaping of American political theory has never been fully grasped or articulated by scholars,3 and whose meaning has been comprebended by the federal judiciary-including the Supreme Court itselfvirtually not at all.4 It is our view that once the Court's decision in Klein is appropriately dissected and extrapolated, both judges and scholars will be in a position to grasp the essence of an extremely important-yet often ignored or misunderstood-precept of American democratic and constitutional theory that lies at the hidden core of the Klein opinion.
In Klein, the post-Civil War Supreme Court held unconstitutional a federal statute that sought to employ Congress's constitutional power to make exceptions to Supreme Court appellate jurisdiction5 as a vehicle for requiring the Court to deem the issuance of a presidential pardon to be conclusive proof of disloyalty on the part of former Confederates.6 A finding of disloyalty mattered greatly because those found to have been disloyal were statutorily disabled from recovering property that had been seized by the federal government. In this Essay, we undertake to glean a vitally important, yet largely unrecognized, element of democratic theory from the reasoning contained in the Klein opinion that declared this legislatively directed rule of evidence unconstitutional and to explore its essential role in the healthy operation of the American political process. We derive from Klein the need for a dynamic, intersecting relationship among three important actors in the American political system: the elected branches of government, the electorate that chose them, and the unrepresentative judiciary. In this relationship, it is, paradoxically, the most undemocratic branch of government that is to stand as the policeman of the democratic process, seeking to assure the continuing viability of representative democracy and the integrity of the fiduciary relationship between the elected and the electorate.
It would surely not be a startling revelation to suggest that, in the American constitutional system, it is the insulated judiciary that is intended to police the elected branches of government. What we derive from Klein, however, is a far more subtle precept of American political theory: that the judiciary has the constitutional power and obligation to assure that Congress has not deceived the electorate as to the manner in which its legislation actually alters the preexisting legal, political, social, or economic topography. The legislative deception that is of concern, we should emphasize, does not go to the legislators' private motivation in enacting the legislation, or what incidental or collateral effects the legislation may have, beyond its direct and immediate impact. …