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ABSTRACT
This article attempts to highlight some methodological problems that affect the judicial review of the process of legislative justification, i.e. the incorporation of process-related arguments or criteria into the constitutional assessment of legislation. In brief, how courts (should) analyse that process and evaluate its quality, when they will (should) do it, and what the interrelation is (should be) between the merits of the lawmaking process and the result-oriented judgment on the constitutionality of legislative contents remains largely unclear. To flesh out this claim, I will first introduce my understanding of process review with the help of the notions of ‘legislative method’ and ‘internal’ lawmaking process (1). On this basis, the bulk of the paper is devoted to discussing two interwoven sets of uncertainties as to the application of process checks. One concerns their activation and their coupling with the substantive scrutiny of laws as results (2); the other has to do with the structure (3) and qualification (4) of the justificatory requirements on the lawmaking process. To finish, I will touch upon the (lacking judicial) method to analyse and assess parliamentary debates (5).
Acknowledgements
For valuable comments I am indebted to Mariano Melero, Jan Sieckmann, Klaus Meßerschmidt and Andreas Funke, as well as to all participants in the International Workshop on Evidence-based Review of Legislation (Nuremberg, February 2016). Many thanks are also owed to the two anonymous reviewers on the manuscript for their remarks and suggestions, and to Anthea Connolly for her linguistic advice.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 The question of whether legisprudential duties are proper legal duties binding on lawmakers or just natural obligations or argumentation burdens plagues scholarly debates about the due method of legislation, but this ‘status’ issue may be left aside here. The important thing is that process criteria or requirements, at least in certain cases, play a relevant argumentative role as part of the ratio decidendi.
2 See G. Schwerdtfeger, ‘Optimale Methodik der Gesetzgebung als Verfassungspflicht’, in R. Stödter and W. Thieme (eds), Hamburg, Deutschland, Europa. Festschrift für Hans Peter Ipsen (Mohr-Siebeck 1977) 173 and M. Reicherzer, Authentische Gesetzgebung (Duncker & Humblot 2006) 481–482. The German Federal Constitutional Court (hereinafter, BVerfG) has inspected legislation under this aspect since the 1970s. Process requirements appear as early as in the 1958 chemistries decision (BVerfG 7, 377, 411–12), but the starting point for (semi-)procedural review is usually placed in its rulings on the mills structure act (1975) and codetermination (1979): see respectively, BVerfGE 39, 210, 225–26 and BVerfGE 50, 292, 332 ff. Nevertheless, the view that – legally speaking – ‘the lawmaker owes nothing more than the law’ (W. Geiger, ‘Gegenwartsprobleme der Verfassungsgerichtsbarkeit aus deutscher Sicht’, in T. Berberich et al. (eds), Neue Entwicklungen im öffentlichen Recht (Kohlhammer 1979), 141; K. Schlaich, ‘Verfassungsgerichtsbarkeit im Gefüge der Staatsfunktionen’ (1981) 39 Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer 99, 103) is widespread among German jurists. See, for example, D. Merten, ‘Gute Gesetzgebung als Verfahrenspflicht oder Verfahrenslast?’ (2015) 68 Die Öffentliche Verwaltung 349, 360; cf. also Ch. Waldhoff, ‘On Constitutional Duties to Give Reasons for Legislative Acts’, in Rational Lawmaking under Review (Springer 2016) 129 ff.
3 This is only one possible way to describe an ideal, albeit rudimentary process of lawmaking. Of course, the separation of stages or ‘mental steps’ is only for analytical purposes, since all of them are intertwined. See G. Hoffmann, ‘Das verfassungsrechtliche Gebot der Rationalität im Gesetzgebungsverfahren’ (1990) 2 Zeitschrift für Gesetzgebung 97, 104 ff; P. Noll, Gesetzgebungslehre (Rowohlt 1973) 82; and Schwerdtfeger (n 2) 173. On the due lawmaking method, see for example. L.J. Wintgens, Legisprudence. Practical Reason in Legislation (Ashgate 2012) 294 ff.
4 I assume a thin conception of justification as the giving of reasons for or against normative decisions. The lawmaking method could also be understood as a complex set of actions, not as a structure of justification. Yet, if one asks why such actions are to be taken, the most likely answer – ‘because this makes legislation more rational’ – amounts to saying that it is ‘because this improves the justification of legislation’.
5 See, for example, Reicherzer (n 2) 413 ff; H.J. Mengel, Gesetzgebung und Verfahren (Duncker & Humblot 1997) 271 ff; or K. Meßerschmidt, ‘Special Interest Legislation als Thema von Gesetzgebungslehre und Verfassungsrecht’, in C. Franzius et al. (eds), Beharren. Bewegen. Festschrift für Michael Kloepfer (Duncker & Humblot 2013) 811 ff. There is a ‘democratic’ dimension to all rationality requirements. As for consistency, see for example N. Petersen, ‘The German Constitutional Court and Legislative Capture’ (2014) 12 ICON 650, 652 and 664 (the consistency test, being an instrument of ‘rationality review’, can also serve ‘to counteract legislative capture’; inconsistency, that is, can eventually be ‘an indicator’ of capture).
6 This gives rise to two major tendencies in process review: rationality-oriented and democracy-oriented. For a similar distinction, see A. Kavanagh, ‘Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory’ (2014) OJLS 1, 28, defending process review on both epistemic and legitimacy grounds. Cf. also P. Popelier, ‘Preliminary Comments on the Role of Courts as Regulatory Watchdogs’ (2012) 6 Legisprudence 257, 260 (‘the use or absence of regulatory tools functions as a proxy for the rationality of government intervention or “fairness” of the decisionmaking process’).
7 Publicity or transparency of legislative reasons is a chief dimension to democratic accountability, but may be treated as a mere functional aid to exercise review: as for the BVerfG, see for example S. Rose-Ackerman et al., Due Process of Lawmaking (Cambridge University Press 2015) 178 ff, arguing that it operates as an ‘aid to the Court, not to improve the democratic legitimacy of the parliamentary process’.
8 Judgment of 16 February 2012 (STC 20/2012, Ground 2), emphasis added – the litigation tax was finally upheld. See also judgment of 9 April 2008 (STC 49/2008, Ground 5).
9 While process review focuses on the ‘how’ of justification including its publicity, i.e. on the justification as a process (how were reasons produced?), not as a product (what reasons were adduced?), a clear-cut contradistinction may fail in practice (i.e. to assess the content of a justification without any reference to the underlying method, or vice versa, may be difficult). Cf. J. Sieckmann, Recht als normatives System (Nomos 2009) 88 ff, distinguishing between a normative and a neutral or formal (negative) criticism of balancing; or M. Klatt and J. Schmidt, ‘Epistemic discretion in constitutional law’ (2012) 10 ICON 69, 100–101, separating the process review of (the justificatory structure of) balancing and the substantive review of (the justification of) its premises.
10 Judgments of 13 September 2011 (STC 136/2011, Ground 10), 8 November 2011 (STC 176/2011, Ground 2) and 17 July 2014 (STC 120/2014, Ground 2).
11 Judgments of 13 September 2011 (STC 136/2011, Ground 9, emphasis added), referring to Arts. 23, 66.2 and 88 of the Spanish Constitution, as well as to the standing orders of both houses. See further judgments of 28 July 1986 (STC 108/1986, Ground 3) and 13 March 1984 (STC 35/1984, Ground 6).
12 K. Lenaerts, ‘The ECJ and Process-oriented Review’ (2013) 31 Yearbook of European Law 3.
13 Interestingly, the Spanish Constitution includes a potential anchorage for process review, namely Article 88, which reads: ‘Government bills shall be passed by the Council of Ministers, which shall refer them to Congress, accompanied by a statement setting forth the necessary grounds and facts in order for them to reach a decision thereon’ (note that this concerns only government bills). However, the TC does not seize on it, and confines itself to a quite deferential control of the ‘external’ lawmaking process. As it recalled recently, ‘the absence of certain background information proves relevant only when it deprives the chambers of a necessary element of judgment to take their decision. To determine whether this was the case, (…) [the court checks] whether a given report is facultative or mandatory (…) or the rank of the provision [constitutional or not] that regulates it’ (Judgment of 14 March 2013, STC 68/2013, Ground 2, emphasis added).
14 For instance, when the BVerfG thinks that a violation of fundamental rights is undetectable (ist nicht ablesbar) by checking the end legislative results, it applies the doctrine of ‘iusfundamental protection through process’ (Grundrechtsschutz durch Verfahren) and makes no assessment at all of those results. See BVerfGE 119, 181, 236 (broadcasting fees).
15 Shortly after its Hartz IV judgment on social benefits (BVerfGE 125, 175), the BVerfG elaborated on this point in its 2012 judgment on professorial salaries (2012): ‘to a particularly high extent’, this legal change (of the wage system) ‘is marked with uncertainties and exposed to prognostic mistakes’, and therefore ‘it is the observance of procedural requirements’ that matters, with these operating as a ‘second pillar’ of protection that flanks and reinforces the limited material control (manifest unconstitutionality test) exerted on legislative results (BVerfGE 130, 263, para 163–64). Some decisions on planning or communal restructuring may fall within this category as well: see for example BVerfGE 86, 90, 108 (Papenburg); BVerfGE 50, 50, 51 (Laatzen) or BVerfGE 95, 1, 23 (Stendal). On the criterion of evidence or obviousness in German law, see A. Steinbach, ‘Evidenz als Rechtskriterium’ (2015) 130 Archiv des öffentlichen Rechts 367.
16 BVerfGE 50, 292, 333 (codetermination). With regard to prognostic assumptions see further BVerfGE 88, 203, 262 (abortion II) and, in connection with the subsidiarity principle, BVerfGE 106, 62, 151–152 (care of the elderly).
17 To name but a few: intensified scholarly (and political) criticism on balancing and juristocracy, proliferation of better regulation initiatives, growing social and regulatory complexity, inter-judicial dialogue, and the re-birth of legisprudence. Cf. I. Bar-Siman-Tov, ‘Mending the Legislative Process – The Preliminaries’ (2015), 3 The Theory and Practice of Legislation 245, and ‘The Role of Courts in Improving the Legislative Process’ (2015) 3 The Theory and Practice of Legislation 295.
18 Similarly, for example D.T. Coenen, ‘A Constitution of Collaboration’ (2001) 42 William and Mary Law Review 1575, 1689 (‘The key issue that courts face today is not whether to embrace proper-findings-and-study rules. Rather, the most pressing questions concern when to embrace these rules and what level of policymaker deliberateness they should be deemed to require’).
19 See I. Bar-Siman-Tov, ‘Evidence-based Review of Legislation: A Theoretical and Comparative perspective’, International Workshop on Evidence-based Review of Legislation (Nuremberg, 2016), in this issue.
20 Obviously, no form of review is methodologically unproblematic: cf. D. Coenen, ‘The Pros and Cons of Politically Reversible Semisubstantive Constitutional Rules’ (2009) 77 Fordham Law Review 2835, 2861.
21 BVerfGE 50, 290, 332 ff (codetermination). The explication – and justification – of the substantial boundaries of this prerogative is a big problem in constitutional law, but suffice to say that they are flexible. In care of the elderly, the Court recalled that: ‘The fixation of a prerogative of appreciation in case of prognoses’ responds ‘to the empirical and normative presuppositions under which legislation takes place. There can be no unitary (…) answer, but only differentiated solutions. What criterion is adequate in the concrete case depends, especially, on the particularities of the state of affairs and the prognostic difficulty, whereby a sharp demarcation is barely possible’; the prognostic margin can be ascertained only after an overall consideration of ‘the subject matter’ in the light of ‘the interests which are to be protected, without ignoring the extent to which the expectations underlying the law’ can be said to be objective and rational (BVerfGE 106, 62, 151–52); cf. also junior professorship (BVerfGE 111, 226, 255).
22 I. Bar-Siman-Tov, ‘Semi-Procedural Judicial Review’ (2012) 6 Legisprudence 271 (‘the semiprocedural model requires courts to make substantive judgments not only while employing this model, but also in deciding when to employ this model. (…) [It] not only puts judges in the position of making substantive value judgments about which substantive values merit greater judicial protection; it also puts courts in a position of dictating to the legislature which substantive values merit greater legislative attention’).
23 See Bar-Siman-Tov (n 22), arguing that when ‘the substantive violation is so flagrant that the law should be invalidated under any reasonable exercise of purely substantive judicial review’, process review ‘should be avoided’, i.e. it ‘should be applied only in cases in which the adequacy of the legislative process can and should make a difference in determining constitutionality’; also in this vein, Mengel (n 5) at 371 ff.
24 For another perspective, see for example M. Tushnet, Comparative Constitutional Law (Elgar 2014) 91–92): ‘The structural similarity between subconstitutional review and proportionality review – with procedure replacing substance at the step of justification – suggest another question (…). Proportionality review has a reasonably well-defined structure. What would be the structure of subconstitutional review? (…) is it possible to develop stages of the sort now embedded in proportionality review? (…) The questions about the domain and structure of subconstitutional review are good subjects for future scholarly inquiry’.
25 Lenaerts (n 12). Cf. E. Berger, ‘Deference Determinations and Stealth Constitutional Decision Making’ (2013) 98 Iowa Law Review 465, 505 (‘significantly, substandard fact-finding would not render a statute automatically unconstitutional. (…) A judicial determination that Congress used flawed fact-finding processes would simply militate against deference, because facts found by a self-serving legislature are probably less trustworthy than those found by less partial trial courts’; see also at 492 and 500).
26 Cf. also Bar-Siman-Tov (n 22), arguing that ‘at the first stage, courts should engage in ordinary substantive review to determine whether there is a constitutional infringement and evaluate the severity of that infringement. At the second stage, in which courts determine the permissibility of infringement, the adequacy of the legislative process should completely supplant, rather than supplement, the substantive balancing tests. That is, the stage of determining whether there is a constitutional infringement will be purely substantive, whereas the stage of determining the permissibility of infringement will be purely procedural. Thus the role of courts (…) will truly transform from society’s ultimate balancers of rights and interests to ensuring that legislatures act as more responsible balancers’.
27 Pushing for ‘symmetry’ or ‘equality’ in deference and intervention, Kavanagh (n 6) and Bar-Siman-Tov (n 22). Denying the negative impact, for example, M. Raabe, Grundrechte und Erkenntnis (Nomos 1998) 384 ff; see further Coenen (n 20) at 2878–2879.
28 ‘It is relevant that the 1990 Act was the culmination of an exceptionally detailed examination of the social, ethical and legal implications of developments in the field (…), and the fruit of much reflection, consultation and debate’ (Evans v UK, App 6339/05, ECHR 10 April 2007, para 86: cf. para 87, 60 and 29 ff). Even more clearly in Lindheim and others v Norway (App no 13221/08 and 2139/10) ECHR 12 June 2012: ‘the lack of proportionality in this case was caused by the various factors highlighted in (…) paragraphs 128 to 134 above’ (para 135); the first of those paragraphs reads: ‘the Court has not been made aware, nor does it appear from the material submitted, that any specific assessment was made of whether the amendment to section 33 regulating the extension of the type of ground lease contracts at issue in the applicants’ case achieved a “fair balance” between the interests of the lessors, on the one hand, and those of the lessees, on the other hand’ (para 128). So we know that disproportion is also based – along with other factors – on an absence of legislative balancing, but we do not know exactly how (much) it is based on that. For an analysis of the ECtHR’s case-law, see J. Gerards, ‘Procedural Review by the ECtHR – A Typology’, International Workshop on Evidence-based Review of Legislation (Nuremberg, 2016), in this issue.
29 Process review could be used e.g. as a pretext not to embark on the examination of results: R. Rothkegel, ‘Ein Danaergeschenk für den Gesetzgeber’, 49 Zeitschrift für Sozialhilfe und Sozialgesetzbuch 135, 143–144; cf. also Coenen (n 20) at 2882 ff.
30 For instance, process arguments may serve to establish the reliability of (prognostic) assumptions about the seriousness of the affection of a principle within balancing. Cf. Lustig-Prean and Beckett v UK (App no 31417/96 and 32377/96) ECHR 27 December 1999, para 88, as well as Smith and Grady v UK (App no 33985/96 and 33986/96) ECHR 27 September 1999, para 95 ff.
31 See F.H-Ch. Chung, ‘Defending Due Deference: Probing Procedural Propriety in Proportionality’ (2015) Statute Law Review 1, 11 (‘in many cases, courts are too spontaneous in deferring to the government’s views when the latter has proffered some evidence, paying little attention to the probative value. Worse still, judges also fail to elaborate on how much weight they attach to it and why’). For a clarification of the influence and scope issues, see Ch. Bickenbach, Die Einschätzungsprärogative des Gesetzgebers (Mohr-Siebeck 2014) and W.D. Araiza ‘Deference to Congressional Fact-finding in Rights-Enforcing and Rights-Limiting Legislation’ (2013) 88 New York University Law Review 878, 894–895.
32 Cf. G.F. Schuppert, Governance und Rechtssetzung (Nomos 2011) 44 ff and, with regard to the respective justification sources, Ch. Waldhoff, ‘Gesetzesmaterialien aus verfassungsrechtlicher Perspektive’, in H. Fleichser (ed), Mysterium Gesetzesmaterialien (Mohr-Siebeck 2013) 75 ff and 90.
33 On the structure problem, W. Kluth, ‘Die Begründung von Gesetzen’, in W. Kluth et al., Gesetzgebung (C.F. Müller 2014) 339 ff or M. Meßling, ‘Grundrechtsschutz durch Gesetzgebungsverfahren’, in C. Hohmann-Dennhardt et al. (eds), Grundrechte und Solidarität. Festschrift für Renate Jaeger (Engel 2012) 819, arguing that the BVerfG, in doing process review, ‘has never thematized this other side (Kehrseite) of the control, but has just factually resorted’ to documents taken from the lawmaking process, without any discussion of how a justification should look. Cf. also J. Nolte, ‘Rationale Rechtsfindung im Sozialrecht’ (2013) 52 Der Staat 245, 252.
34 Differently, for example, in petitions, or when legislative proposals originate within the parliament. On the role of private legislative consultants, K. Meßerschmidt, ‘Private Gesetzgebungshelfer’ (2012) 51 Der Staat 387.
35 See for example Waldhoff (n 32) at 79–80.
36 In particular, when bills are submitted by an MP or a parliamentary party. In Spain, for instance, to meet the objection that the 2015 reform of the so-called abortion act did not rely on any report whatsoever, the MPs promoting the reform argued that mandatory opinions (e.g. of the Council of State) delivered on the 2010 act had been actually taken into account. In codetermination, the BVerfG mentioned a report produced in a previous term of office (see below n 44). Yet it is debatable whether reference to justifications of laws or initiatives in previous terms of office or sessions would suffice to meet methodological requirements as to, for example, legislative fact-finding, or whether courts should apply some principle of continuity to exclude them. Cf. Coenen (n 18) at 1658.
37 In broadcasting fees, the court explicitly defined where ‘the justification’ is to be found, namely in the formal motivation accompanying the state pact and the corresponding laws (BVerfGE 119, 181, 206 and 230). But then it resorted to all sorts of materials (e.g. concept papers and ministerial addresses) to conduct a very hard control of the justification.
38 Cf. Nolte (n 33) 251–252, arguing that the BVerfG’s requirements on the internal process are based on an incorrect picture of this process as unidirectional and linear. On this objection, with regard to the US, cf. for example Coenen (n 20) at 2884.
39 For example, in the aforementioned reform of the Spanish abortion act (n 36), it was not the government, but the opposition that resorted to retrospective evaluation reports. Should we assume that this legislative process included an impact study? In this case, the government did not consider this report as relevant, while the opposition endorsed all findings without reservation (the methodical quality of the report was not called into question).
40 On this issue, see Mengel (n 5) at 365; and Ph. Frickey and S. Smith, ‘Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique’ (2002) 111 Yale Law Journal 1707, 1754.
41 Taking into account the democratic rationale of process review, it is not satisfactory that the overall effect of process review is the reinforcement of the legislative role of ministerial bureaucracies; cf. Ch. A. Morand, ‘Les exigences de la méthode législative et du droit constitutionnel portant sur la formation de la législation’ (1988) 10 Droit er Societé 407; Frickey and Smith (n 40) at 1753. The Spanish TC has somehow touched upon this very question by distinguishing between ‘an eventual governmental will’ and the parliamentary will and discarding the relevance of absent reports since they ‘do not belong to the legislative’, but ‘to the pre-legislative process’ (Judgment of 14 March 2013, STC 68/2013, Ground 3).
42 On this, K. Redeker and U. Karpenstein, ‘Über Nutzen und Notwendigkeiten, Gesetze zu begründen’ (2001) 39 Neue Juristische Wochenschrift 2825, 2828–2829; or U. Seibert, ‘Gesetzesmaterialien in der Gesetzgebungspraxis’, in H. Fleischer (ed.), Mysterium Gesetzesmaterialien (Mohr-Siebeck 2013) 111, 117. Cf. also A. Vermeule, Judging under Uncertainty (Harvard University Press 2006) 86 ff.
43 Cf., for example, H. Fleischer ‘Gesetzesmaterialien im Spiegel der Rechtsvergleichung’, in H. Fleischer (ed.), Mysterium Gesetzesmaterialien (Mohr-Siebeck 2013) and N. Duxbury, Elements of Legislation (Cambridge University Press 2013) 92 ff.
44 For instance, in codetermination, the plausibility of the legislative prospection was measured against two process criteria: on the one hand, the law was ‘essentially in accordance with’ the recommendations of a report produced in a previous term of office, which was elaborated ‘on a wide basis and with utmost care’ considering the problem from a legal, political and economic perspective; on the other hand, the government bill relied on that report and furthermore the bill was importantly modified in the parliament as a consequence of ‘numerous and comprehensive hearings’ (BVerfGE 50, 290, 296–297 and 334–335).
45 BVerfGE 88, 203, 254 and 263 (abortion II); Judgment of 9 Feb 2010, 1 BvL 1/09, para 143 (Hartz IV); BVerfGE 106, 62, 151 ff (care of the elderly); BVerfGE 39, 210, 225–226 (mills structure); BVerfGE 65, 1, 55 (census); BVerfGE 57, 129, 159–160 (compulsory quotas for the severely disabled); BVerfGE 50, 290, 333–334 (codetermination).
46 Cf. Mengel (n 5) at 367, pointing out that ‘the methodical contradiction is soluble because [for the BVerfG] the objective and plausible assessment of the available materials by the lawmaker does belong to the process requirements’; Schwerdtfeger (n 2) at 176, arguing that the BVerfG’s approach ‘is not clear enough. Particularly [inasmuch as] the Court does not sufficiently differentiate between the process or method requirements and the substantive requirements’.
47 BVerfGE 119, 181, 232 ff (broadcasting fees); BVerfGE 86, 90, 117 (Papenburg); BVerfGE 120, 82, 113–14 (barrier clause in local elections); BVerfGE 129, 300, 323 (barrier clause in EU elections).
48 BVerfGE 86, 90, 117 (Papenburg); BVerfGE 119, 181, 232–233 (broadcasting fees). In this vein, already BVerfGE 7, 377, 411–12 (pharmacies); see also BVerfGE 65, 1, 55–56 (census) and BVerfGE 111, 226, 266–67 (junior professorship), as well as BVerfGE 125, 175, 238 ff (Hartz IV).
49 See, for example, Schuppert (n 32) at 36.
50 ‘In accordance with the parliamentary act character of the decision’, the BVerfG may not set ‘exaggerated requirements with respect to the exactness and substantiation (Detailgenauigkeit und Substantiiertheit) of the justification’ (BVerfGE 119, 181, 229, broadcasting fees). The ECJ has applied a similar doctrine to the recitals: e.g. Case 5/67 Beus v Hauptzollamt München (13 March 1968), ECR 84, 95 and Case 304/01 Spain v Commission (9 September 2004), ECR I-7318 para 51.
51 On the ‘manipulability’ of the legislative method, for example, Schwerdtfeger (n 2) at 188, or Frickey and Smith (n 40) at 1754.
52 M. Nettesheim, Gesetzgebungsverfahren im europäischen Staatenverbund (Nomos 2014) 42; Bickenbach (n 31) at 415; Schwerdtfeger (n 2) at 181. See further Reicherzer (n 2) at 506 ff, and K. Meßerschmidt, Gesetzgebungsermessen (Arno Spitz 2000) 951 ff.
53 See, however, Raabe (n 27) at 367 ff; J. Rivers, ‘Proportionality, Discretion, and the Second Law of Balancing’, in G. Pavlakos (ed), Law, Rights and Discourse (Hart 2007) 186–187; or Klatt and Schmidt (n 9).
54 Cf. Tushnet (n 24) at 88 ff.
55 For a critical review of the simplification argument, see Meßerschmidt (n 52) at 872 ff.
56 Rose-Ackerman et al. (n 7) at 178 ff.
57 Take the following ruling of the US Supreme Court as an example: to the majority, ‘although the record includes instances to support such a finding, the great majority of these incidents do not deal with state activities in employment. Even if it were to be determined that the half a dozen relevant examples from the record showed unconstitutional action on the part of States, these incidents taken together fall far short of even suggesting (…) unconstitutional discrimination’ (Board of Trustees of the University of Alabama et al v Garret et al, 531 US 356, 2001, p 357; see also p 369 ff). Dissenting Justice Breyer objected: ‘the congressionally appointed task force collected numerous specific examples (…). They reveal, not what the Court describes as “half a dozen” instances of discrimination, but hundreds of instances (…). As the Court notes, those who presented instances of discrimination rarely provided additional, independent evidence sufficient (…) from a judicial standpoint. (…). Perhaps this explains the Court’s view that there is “minimal evidence” (…). But a legislature is not a court of law. And Congress (…) must, and does, routinely draw general conclusions (…) from anecdotal and opinion-based evidence’ (531 US 356, 2001, 379–380).
58 See, for example, M. Kloepfer, ‘Abwägungsregeln bei Satzungsgebung und Gesetzgebung’ (1995) 110 Deutsches Verwaltungsblatt 441; or Reicherzer (n 2) at 449 ff. Sceptically, Meßerschmidt (n 52) at 848 ff.
59 Cf., for example, R. van Gestel and J. de Poorter, ‘Putting evidence-based law making to the test: judicial review of legislative rationality’, International Workshop on Evidence-based Review of Legislation (Nuremberg, 2016) 28 ff, in this issue, where they suggest using the Daubert formula; see also Chung (n 31).
60 Kavanagh (n 6) at 5.
61 Thus, J. Lücke, ‘Die allgemeine Gesetzgebungsordnung’ (2001) 16 Zeitschrift für Gesetzgebung 1, 26, defending the idea that members of parliament are subject to a constitutional duty to deliberate.
62 The court endorsed that ‘the lawmaker’ was ‘guided by considerations about supplies and [industrial] structure policy, and about agrarian and social policy’ (and not by influences emanating from pressure and interest groups), since ‘such considerations were repeatedly adduced in the deliberations of the committees participating in the lawmaking process’ (BVerfGE 39, 210, 227–228, mills structure). Cf. also BVerfGE 50, 290, 334–335 (codetermination).
63 BVerfGE 79, 311, 345 (state debt).
64 ‘There is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality (…). It cannot be said that there was any substantive debate by members of the legislature’ (Hirst v UK, App no 74025/01, ECHR 6 December 2005, para 79; cf. the separate opinions by Wildhaber and others and by Tulkens and Zagrebelsky). See also Alajos Kiss v Hungary (App no 38832/06), ECHR 20 May 2010, para 41, where the court uses the same argument unanimously.
65 In a sense, such extreme cases would parallel manifest substantive unconstitutionalities or errors – as well as gross, serious flaws in the legislative proceedings. Cf. also above, text with n 49 and n 51.
66 See Kavanagh (n 6) at 22. Cf. also Chung (n 31); L. Lazarus and N. Simonsen, ‘Judicial Review and Parliamentary Debate’, in M. Hunt et al. (eds), Parliaments and Human Rights (Hart 2015); and M. Tushnet, ‘Is Congress Capable of Conscientious, Responsible Constitutional Interpretation?’ (2009) 89 Boston University Law Review 499, 503. These proposals directly point at the evaluation aspect, but do not pay much attention to the methodological difficulties in the reconstruction and analysis of legislative debates.
67 Kavanagh (n 6) at 22 and 23, arguing that ‘it is not just a matter of the existence or quantity of debate, but also a matter of its quality, i.e. whether the human rights issue was squarely addressed or fully debated or whether the relevant views were adequately represented. Some evaluation of the content of parliamentary debate is necessary in order to establish whether this is the case’; thereby, ‘quality’ might refer to the content of arguments, but ‘it could also refer to the quality of the decision-making process in Parliament (…). The latter addresses a different set of questions, namely, whether the human rights issue was addressed or debated and, if so, to what extent, how fully or inclusively, etc. It is true that (…) the courts must have some knowledge of the content of the debates and must take some stand on their quality. (…) Though it may be difficult to distinguish these two different types of inquiry in some cases, it is, I believe, possible to assess the quality of the decision-making process without evaluating the merits of the individual argument’.
68 Meßerschmidt (n 52) at 850.
69 If this holds true, we will have to find out how debates can be controlled in the framework or as part of the totality of the works and materials that may belong to the process of legislative justification. On the importance that the BVerfG attaches to parliamentary deliberation (albeit in another context), see BVerfG 2 BvE 2/09, para 100 (people’s assembly).