Judicial Review Standards in Unicameral Legislative Systems

JUDICIAL REVIEW STANDARDS INUNICAMERAL LEGISLATIVE SYSTEMS:

A POSITIVE THEORETIC ANDHISTORICAL ANALYSIS

JAMES R. ROGERSt

IN TRODU CTION .......................................................................... 66PART I. THE HISTORY OF CAMERAL CHOICE IN THE U.S.. 68

A. CAMERAL CHOICE AND STATE CONSTITUTIONALP OLITICS ........................................................................ 68

B. THE HISTORICAL DISTINCTION BETWEEN "CLASSICAL"AND "REPUBLICAN" BICAMERALISM ............................... 74

PART II. JUDICIAL REVIEW AS A SUBSTITUTE FOR ASECOND CHAMBER: THE HISTORICAL EXPECTATION ....... 79PART III. CONSTITUTIONAL DEFICIENCIES OFUNICAMERAL ENACTMENTS: TWO POSITIVETHEORETIC M ODELS ................................................................ 86

A. UNICAMERAL PROCESS AND SELECTING LEGISLATIVEENDS: THE FACTION MODEL ........................................ 88

B. UNICAMERAL PROCESS AND SELECTING LEGISLATIVEMEANS: THE INFORMATION MODEL ............................... 97

PART IV. APPROPRIATE JUDICIAL REVIEW STANDARDSIN UNICAMERAL LEGISLATIVE SYSTEMS ............................ 100

A. STANDARDS FOR REVIEWING LEGISLATIVE MEANS ........ 103B. STANDARDS FOR REVIEWING LEGISLATIVE ENDS .......... 104

PART V. ARE THERE OFFSETTING PROCESSADVANTAGES TO UNICAMERAL SYSTEMS? ......................... 106C O N C LU SIO N ............................................................................. 110APPENDIX: FORMAL DISCUSSION OF INFORMATIONALM ODEL AND RESULTS ............................................................. 112

t Assistant Professor, Department of Political Science, Texas A&M University.B.A., University of Nebraska 1983; J.D., University of Nebraska Law School 1987;M.A., Brown University (economics), 1989; Ph. D., University of Iowa (political sci-ence), 1994. An earlier version of this paper was presented at the April, 1998 meetingof the Midwest Political Science Association in Chicago, IL. Grant support is grate-fully acknowledged from the Texas A&M University Scholarly Enhancement Program,the Nebraska Center for Public Policy, and the American Politics Program of theGeorge Bush School of Government at Texas A&M University.

CREIGHTON LAW REVIEW

INTRODUCTION

Courts reviewing the constitutional reasonability' of ordinaryNebraska statutes2 apply the same deferential review standards ascourts that review similar laws in other states.' This is inconsistentwith the implications of Nebraska's legislative exceptionalism - theunicameral legislature.4 The impact of eliminating a second legisla-tive chamber extends beyond the legislature itself and necessarilyaffects the relationship between the legislature and coordinatebranches of government. Drawing on the historical expectations ofunicameral reformers and on modem positive political theory,5 thisarticle argues that eliminating a second legislative chamber impliesthe compensatory need for heightened judicial review standards un-der constitutional reasonability requirements relative to the stan-dards courts apply in bicameral systems. While this conclusion isimmediately pertinent to the choice of review standards in Nebraska,it also has implications for the growing number of states activelyconsidering the unicameral reform,' as well for the 126 countries that

1. Courts review the "reasonability" of statutory means and ends under theEqual Protection and Due Process clauses of the Fourteenth Amendment and relatedNebraska constitutional provisions. See infra notes 129-30 and accompanying text.

2. "Ordinary" state statutes are those that proceed neither along suspect linesnor infringe fundamental constitutional rights. They traditionally receive very defer-ential review. See, e.g., Federal Communications Comm'n v. Beach Communications,Inc., 508 U.S. 307, 313 (1993). See also infra notes 129-30 and accompanying text.

3. For example, the Nebraska Supreme Court has stated that "[t]he NebraskaConstitution and the U.S. Constitution have identical requirements for equal protec-tion challenges." Pick v. Nelson, 247 Neb. 487, 498, 528 N.W.2d 309, 318 (1995) (cita-tions omitted). The equal protection provisions (or their equivalent) in many otherstate constitutions have been held to be the same as the federal standard, althoughthere are some important exceptions. See Jason W. Hayes, Amendment One: TheNebraska Equal Protection Clause, 32 CREIGHTON L. REV. 611, 617 (1998).

4. NEB. CONST. art. III, § 1.5. "Positive political theory" uses the formal theoretic methodology originally

developed in economics to study political and governmental processes. The literatureon "positive political theory and law" is burgeoning. The Georgetown Law Journalcollected a number of articles in, Symposium, Positive Political Theory and PublicLaw, 80 GEO. L.J. 457 (1992). A recent collection of "classic" articles can be found inMAXWELL L. STEARNS, PUBLIC CHOICE AND PUBLIC LAW: READINGS AND COMMENTARY(1997). See, e.g., William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/ President Civil Rights Game, 79 CAL. L. REV. 613 (1991); William N. Esk-ridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J.331 (1991); Daniel A. Farber & Philip P. Frickey, Foreword: Positive Political Theoryin the Nineties, 80 GEO. L.J. 457 (1992); John Ferejohn & Barry Weingast, A PositiveTheory of Statutory Interpretation, 12 INT'L REV. L. & ECON. 263 (1992); MatthewMcCubbins et. al., Politics and Courts: A Positive Theory of Judicial Doctrine and theRule of Law, 68 S. CAL. L. REV. 1631 (1995); William Riker & Barry Weingast, Consti-tutional Regulation of Social Choice: The Political Consequences of Judicial Deferenceto Legislatures, 74 VA. L. REV. 373 (1988).

6. Fourteen states have officially considered proposals to eliminate one legisla-

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UNICAMERAL LEGISLATIVE SYSTEMS

currently have unicameral national legislatures.7

The discussion is organized as follows. Part I briefly surveys thehistory of cameral choice in the United States and contrasts GeorgeNorris's tendentious characterization of the origins of American bi-cameralism with the conclusions of modem historians. Part II revis-its the now forgotten expectation of unicameral proponents thatheightened standards of judicial review would at least partially com-pensate for the elimination of the review accorded to legislation bysecond chambers in bicameral systems. Part III then develops twosimple positive theoretic models that show that unicameral legisla-tures produce legislation that is more constitutionally suspect thanbicameral legislation along two dimensions: (1) Statutes enacted byunicameral legislatures are more likely to pursue constitutionallyillegitimate purposes than are statutes enacted by bicameral legisla-tures; and (2) statutes enacted by unicameral legislatures are morelikely to employ "unreasonable" statutory means to pursue their endsthan are statutes enacted by bicameral legislatures.

Taken together, Parts II and III show that dispensing with thecheck on legislation provided by second chambers means that otherbranches of government have to assume the review tasks once per-formed by the eliminated chamber. Progressive-era unicameralistsargued that judicial oversight would be one important substitute inunicameral systems for the check and balance provided by secondchambers in bicameral systems. The positive theoretic models thenidentify the particular dimensions appropriate for heightened judicialscrutiny. The models map directly onto the means/end inquiry ap-plied by U.S. courts to review the reasonability of state statutes un-der federal and state equal protection and due process guarantees.On both historical and process grounds, the analysis shows that inorder for Nebraska to obtain levels of statutory reasonability compa-rable to those obtained in bicameral systems, courts must provide ahigher level of scrutiny when reviewing its unicameral enactmentsthan when they review bicameral enactments. Part IV then offers a

tive chamber within the last six years. See infra notes 39-55 and accompanying text.7. GEORGE TSEBELIS & JEANNETTE MONEY, BICAMERALISM 45 (1997). There are

56 bicameral national legislatures. Id. There have been a number of instances of suc-cessful national cameral change since World War II. See generally TWO INTO ONE: THEPOLITICS AND PROCESS OF NATIONAL CAMERAL CHANGE (Lawrence D. Longley &David M. Olson eds., 1991) [hereinafter TWO INTO ONE]. Of course, legal doctrinesdeveloped in the specific context of the U.S. constitutional system need not be directlyapplicable to the many alternative arrangements structuring the relationship betweenlegislatures and judiciaries in other countries. Nonetheless, the U.S. model of judicialreview has been influential world-wide, so the analysis developed here may be perti-nent to national systems as well. See generally COMPARATIVE JUDICIAL REVIEW ANDPUBLIC POLICY (Donald W. Jackson & C. Neal Tate eds., 1992).

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preliminary discussion of the level of heightened review that mightbe warranted given the suspected constitutional infirmities of stat-utes enacted through a unicameral process. Finally, Part V discusseswhether there might be any process advantages to unicameralismthat would offset the need for heightened judicial review in unicam-eral legislative systems.

PART I. THE HISTORY OF CAMERAL CHOICE IN THE U.S.

This section briefly surveys the history of cameral choice in theUnited States from colonial times up to current proposals in statelegislatures. We then consider George Norris's bicameral historiog-raphy. Much of Norris's criticism of bicameral process stems fromhis failure to recognize, as modern historians have, that the "republi-can" bicameralism of U.S. states - when both chambers share thesame electors - is fundamentally different from the "classical" or"mixed government" bicameralism practiced in Britain, where cham-bers are allocated to different economic or political classes. Carefullydistinguishing between the different forms of bicameralism is impor-tant in order to characterize accurately the existence and significanceof unicameralism's constitutional weaknesses relative to bicameral-ism.

A. CAMERAL CHOICE AND STATE CONSTITUTIONAL POLITICS

When Nebraska's unicameral legislature met for the first timeearly in 1937, it had scarcely been 100 years since the meeting of thelast state unicameral legislature in Vermont. From the earliest daysof the American colonies up through today's headlines, legislativecameral reform has been a regular, if periodic, component of stateconstitutional debates. The earliest colonies typically legislated withsome form, however ambiguous, of unicameralism. These early gov-ernments had no strict separation of powers and, in a mixture of leg-islative and executive authority, colonial representatives assembledtogether with the governor and his council.8 These colonial represen-tatives initially had no formal powers, but rather served only to pro-vide advice and information to the executive. Throughout the late17th and early 18th centuries, a form of bicameralism gradually de-veloped as colonial representatives struggled for and won the right tosit independently of the governor's council, the right to initiate lawsrelating to the internal government of the colony,9 and the preroga-

8. These chambers often exercised judicial authority as well. William C. Morey,The First State Constitutions, 3 ANNALS AM. AcAD. POL. & SOC. Sci. 201, 211 (1893).

9. JACK P. GREENE, NEGOTIATED AUTHORITIES: ESSAYS IN COLONIAL POLITICALAND CONSTITUTIONAL HISTORY 165 (1994).

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tive to set internal taxes.10 Because the executive councils of that eraacted sometimes in an executive capacity and sometimes in a legisla-tive capacity, it is not entirely clear whether they should be unambi-guously identified as second legislative chambers.1" Nonetheless,because these upper chambers exerted legislative authority andevolved into legislative chambers upon independence from Britain,commentators tend to identify most pre-Revolutionary colonial leg-islatures as bicameral in form.'2

During the Revolutionary era, Georgia, Pennsylvania, and Ver-mont all adopted unicameral legislatures. More than any other stateof the era, Pennsylvania's debate over cameral choice reached a highlevel of maturity and refinement, and its rejection of unicameralismin its 1790 constitution set an influential example for other states. 3

Georgia adopted bicameralism in 1789, and Vermont, waiting an-other forty-five years, adopted a second legislative chamber in 1836.1'All states subsequently joining the union (including Nebraska) en-tered with bicameral legislatures.

While unicameralism continued to be of interest to political phi-losophers during the nineteenth century, 5 it was not until the Pro-gressive era in the United States that cameral choice once again re-ceived sustained attention at the level of ordinary state constitu-tional politics.1" A flurry of proposals then burst onto the nationalscene. As early as 1912, Oregon voters considered and rejected, byan electoral margin of better than two to one, a constitutionalamendment proposing a 60-member unicameral legislature for the

10. See generally COLONIES TO NATION 1763-1789: A DOCUMENTARY HISTORY OFTHE AMERICAN REVOLUTION (Jack P. Greene ed., 1975); cf. GREENE, supra note 9.

11. This issue arose with a vengeance in the pre-Revolutionary Wilkes Fundcontroversy in South Carolina. The colony's house of commons argued the "inconsis-tency and absurdity" of the South Carolina council acting both as an upper legislativechamber and as an advisory council to the governor. GREENE, supra note 9, at 402.

12. James D. Barnett, The Bicameral System in State Legislation, 9 AM. POL.SCI. REV. 449, 451 (1915).

13. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787227-37 (1969).

14. Barnett, 9 AM. POL. SCI. REV. at 451; Morey, 3 ANNALS AM. ACAD. POL. &SOC. SCI. at 215; JOHN P. SENNING, THE ONE-HOUSE LEGISLATURE 75-77 (1937)[hereinafter SENNING (1937)]; ALVIN W. JOHNSON, THE UNICAMERAL LEGISLATURE 19-44(1938).

15. Anticipating the American Progressives' interest in "rational government,"British utilitarian and reform scholars, such as Jeremy Bentham, championed uni-cameralism throughout the mid-1800s. See, e.g., Lewis Rockow, Bentham on the The-ory of Second Chambers, 22 AM. POL. SCI. REV. 576, 577-78 (1928).

16. During the Progressive era, as at the time of the American founding, theissue of cameral choice in constitutional systems was often linked with other constitu-tional proposals.

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state. 7 The next year, the California senate considered and rejecteda proposal to create a single, forty member legislative chamber. In1915, the Alabama legislature considered a constitutional amend-ment to create a unicameral legislature, but that, too, failed to obtainthe requisite support in the legislature."5 In the same year, GovernorGeorge W. Hunt of Arizona advocated the adoption of a unicamerallegislature for his state. The next year Arizona voters nonethelessrejected a unicameral initiative proposal by a margin of almost two toone. 9 At least twelve other states considered unicameralism prior to1920 in some official capacity.2° All totaled, over one-third of thestates had accorded official consideration to unicameralism prior to1920. Nonetheless, all proposals for reform were defeated. In per-haps the closest loss of the period, Oklahoma voters, who voted on a1914 unicameral initiative, supported the measure with over fifty-eight percent of the vote (99,686 in favor and 71,742 opposed). Theamendment did not win approval, however, because of the Oklahomarequirement that measures garner a majority of all votes cast. Over75,000 Oklahoma voters who cast ballots in that election abstainedfrom indicating a preference on the unicameral initiative. Conse-quently, the measure needed almost 25,000 additional votes for suc-cess. During the 1920s, unicameral proposals continued to be con-sidered throughout the states, albeit at different levels of serious-ness. None succeeded.

Nebraska considered, and rejected, proposals for unicameral re-form at least six times prior to its success in 1934. A joint legislativecommittee first proposed the consideration of unicameralism for Ne-braska in 1913.21 A majority of the legislature voted in 1915 to hold areferendum on a constitutional amendment to adopt a one-chamberlegislature, but it failed to receive the requisite supermajority re-quired to submit the amendment to Nebraska's electorate. A similarproposal voted on by the legislature in 1917 failed to receive support

17. The vote was 71,183 to 31,020. SENNING (1937), supra note 14, at 41-42.Oregon voters faced another unicameral initiative in 1914. This one was defeated by123,429 to 62,376.

18. SENNING (1937), supra note 14, at 39.19. The vote was 22,286 to 11,631. SENNING (1937), supra note 14, at 39.20. Arkansas, Colorado, Kansas, Massachusetts, Minnesota, New York, Ohio,

Oklahoma, South Dakota, Tennessee, Washington, and Nebraska. The issue was re-peatedly considered in many states. California, for example, considered unicameralproposals again in 1915 and 1917. SENNING (1937), supra note 14, at 39-43; JOHNSON,supra note 14, at 95-108.

21. More detailed histories of the Nebraska reform, See generally SENNING(1937), supra note 14; John P. Senning, Nebraska Provides for a One-House Legisla-ture, 29 AM. POL. SCI. REV. 69 (1935) (hereinafter Senning (1935)], and JOHNSON, su-pra note 14, at 95.

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from even a majority of legislators. At Nebraska's 1919-1920 consti-tutional convention, a unicameral proposal evenly split the conven-tion's delegates in a tie vote. The measure subsequently failed whenthe convention's president broke the tie by voting against the re-form." After 1920, proposals for unicameralism still abounded inNebraska, but legislative and public interest had cooled. A 1923 ini-tiative failed to receive enough signatures to be placed on the ballot,and legislative proposals in 1923, 1925, and 1933 received little seri-ous attention.

There is little indication the reform would have fared any betterin 1934 had it not been for the personal intervention of Nebraska'sinfluential U.S. senator, George Norris. Norris was perhaps theleading unicameralist of his day, advocating the reform at least since1923 when he published an editorial piece in the New York Times2 3

sketching the design of a "model state legislature" that included,among other recommendations, the one-chamber legislature. Appar-ently wearied of the diminishing prospects for unicameral reform inhis own home state, on February 22, 1934, Norris announced his in-tention to put his own efforts behind a unicameral initiative to beplaced for consideration on the November ballot.24

The consensus of opinion holds that Norris's personal involve-ment in the campaign was critical to its success in Nebraska. LesterOrfield, a University of Nebraska law professor, writing for theMichigan Law Review in 1935 concluded: "In 1934 Senator Norristook charge of the movement to bring about a unicameral legislature.He was assisted by local persons of prominence, but to him almostalone must go the credit for the adoption of the plan."25 University ofNebraska political scientist John P. Senning noted that, unlike thefailed attempts at reform earlier in Nebraska, "[w]hat gave signifi-cance to the [1934] movement was the fact that Senator Norris spon-sored it."26 A state newspaper similarly observed: "If the proposalhad come from any other source than Senator Norris, it would have

22. JOHNSON, supra note 14, at 132.23. George W. Norris, One Branch Legislature for States Would Improve Results,

N.Y. TIMES, January 28, 1923, at 12.24. He announced his intent on February 22, 1934. His speech that day an-

nouncing the campaign for unicameralism and the other legislative reforms wereprinted in the Congressional Record a few days later on February 27. George W. Nor-ris, The Model Legislature, Address delivered at Lincoln, Nebraska (Feb. 22, 1934),printed in 80 CONG. REc. 3276, 3277 (1934) [hereinafter Norris (1934)]; cf GeorgeNorris, Nebraska's One-House Legislative System, 81 CONG. REC. 1635 (1935) [herein-after Norris (1935)].

25. Lester B. Orfield, The Unicameral Legislature in Nebraska, 34 MICH. L. REV.26, 27 (1935).

26. Senning (1935), 29 AM. POL. SCI. REV. at 69.

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received almost no consideration at all." 7 Alvin W. Johnson ob-served: "Senator George W. Norris had long been the moving spiritin the agitation for a unicameral legislature, and he gave all his ef-forts to the cause in the spring and summer of 1934. "2 The Inde-pendent Woman asserted that Norris "put through the Nebraskalegislative reform," and that when he began "nearly everyone in theState seemed to be against him.' At the very least, according toSenning, "the [Nebraska] press was unanimously opposed to theamendment" (although he then cites several exceptions).3°

Norris chose to place the reform proposal before Nebraska votersby a citizen initiative. While the 1923 initiative failed to secureenough signatures to be placed on the ballot, the 1934 initiative peti-tion received 95,000 signatures, almost 40,000 more than the numberrequired.3 1 The results of the November, 1934 election saw themeasure adopted with just less than sixty percent of the vote.32 Thefirst unicameral legislature in Nebraska subsequently met in 1937."3

Prior to Nebraska's adoption of the unicameral reform, interesthad decreased considerably in other states from its peak in the late1910s and the early 1920s. Only a handful of states considered con-stitutional amendments for unicameralism in each of the 1931 and1933 legislative cycles.34 The adoption of unicameralism in Ne-braska, however, sparked a new round of reform activity. In 1935alone, some twelve states considered legislation proposing unicamer-alism. In 1937, twenty-one of the forty-three legislatures holdingsessions considered at least one proposal to implement unicameral-ism. 35 None was successful.

After the spike of interest stimulated by Nebraska's action, agi-tation for unicameralism again quieted, but did not completely dis-appear from the states' political landscape. Alaska saw a vocal pro-ponent of unicameralism at its constitutional convention prior tostatehood in the late 1950s, Florida courts ruled a unicameral initia-

27. Id. (quoting THE BEATRICE SUN, August 12, 1934).28. JOHNSON, supra note 14, at 132.29. INDEPENDENT WOMAN (May, 1935), reprinted in 81 CONG. REC. 8828 (1935).

Similarly, Colorado U.S. Senator Edward P. Costigan, remarked that Norris had'originated and carried through" the one-house legislative system in the Nebraskavote. 81 CONG. REC. 1635 (1935) (statement of Sen. Costigan).

30. SENNING (1937), supra note 14, at 59.31. 57,600 were required. Orfield, 34 MICH. L. REV. at 27.32. The final vote was 286,086 (59.7%) in favor and 193,152 (40.3%) opposed.

Eighty-four out of 93 counties supported the measure, as did 1,956 out of 2,029 Ne-braska precincts. Orfield, 34 MICH. L. REV. at 27.

33. Nonpartisan elections constituted the other major part of the 1934 reform.34. JOHNSON, supra note 14, at 95.35. Id.

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tive attempt ineligible for the 1970 ballot,36 and North Dakota votersdefeated a unicameral proposal by a two to one margin in 1972."7

Reports indicate that three states considered the reform at least in-formally in the 1970s and three more states did so in the 1980s.3"The 1990s, however, have witnessed a dramatic increase in officialattention to unicameralism with fourteen states considering the re-form since 1993, some of them multiple times. At least four unicam-eral proposals were introduced in the 1999 session of the Minnesotalegislature (with twenty-seven measures proposing unicameralismbeing introduced since 1994).3

' Additionally, the state's new gover-nor and new House speaker are both vocal proponents of unicamer-alism for Minnesota, with the state's leading newspaper editorializ-ing that the elimination of one legislative chamber "may be com-ing."4 The 1999 legislative sessions of Hawaii41 and New York42 alsosaw renewed introduction of unicameral proposals. In 1997 legisla-tive sessions, state legislators sponsored unicameral proposals inAlaska,43 Connecticut,44 Iowa,45 South Dakota,46 and Wisconsin.47

36. Adams v. Gunter, 238 So.2d 824, 832 (Fla. 1970).37. Only thirty-one percent of North Dakota voters supported the reform in the

1972 ballot. Dale Wetzel, Dorso Supports Bicameral System, THE BISMARCK TRIBUNE,August 19, 1999, at 2B.

38. California, Montana, and North Dakota considered the reform at some levelduring the 1970s, and Florida, Minnesota, and Mississippi showed some interest dur-ing the 1980s. Rick Atkinson, Nebraska Still Alone on 1-House System, OMAHA WORLDHERALD, Apr. 10, 1990, at 7.

39. S.F. 30, 81st Leg. (Minn. 1999); S.F. 43, 81st Leg. (Minn. 1999); S.F. 44, 81stLeg. (Minn. 1999); H.F. 34, 81st Leg. (Minn. 1999); S.F. 4, 80th Leg., Spec. Sess.(Minn. 1998); S.F. 39, 80th Leg. (Minn. 1997); S.F. 59, 80th Leg. (Minn. 1997); S.F. 69,80th Leg. (Minn. 1997); S.F. 189, 80th Leg. (Minn. 1997); S.F. 1388, 80th Leg. (Minn.1997); H.F. 57, 80th Leg. (Minn. 1997); H.F. 59, 80th Leg. (Minn. 1997); H.F. 145, 80thLeg. (Minn. 1997); H.F. 158, 80th Leg. (Minn. 1997); H.F. 581, 80th Leg. (Minn. 1997);H.F. 905, 80th Leg. (Minn. 1997); S.F. 1859, 79th Leg. (Minn. 1996); H.F. 2020, 79thLeg. (Minn. 1996); H.F. 2186, 79th Leg. (Minn. 1996); H.F. 62, 79th Leg. (Minn. 1995);H.F. 70, 79th Leg. (Minn. 1995); H.F. 77, 79th Leg. (Minn. 1995); H.F. 212, 79th Leg.(Minn. 1995); H.F. 587, 79th Leg. (Minn. 1995); H.F. 1074, 79th Leg. (Minn. 1995);H.F. 1993, 78th Leg. (Minn. 1994); H.F. 2121, 78th Leg. (Minn. 1994).

40. Keep Two Houses, STAR TRIBUNE (MINNEAPOLIS), December 13, 1998, at 34A.41. S.B. 472, 20th State Leg. (Haw. 1999). See S.B. 3160, 19th State Leg. (Haw.

1997).42. S.B. 1001, 222d Annual Leg. Sess. (N.Y. 1999); A.B. 3106, 222d Annual Leg.

Sess. (N.Y. 1999); see S.B. 3829, 220th Annual Leg. Sess. (N.Y. 1997).43. H.J.R. 11, 20th Leg., 1st Sess. (Alaska 1997); see H.J.R. 2, 19th Leg., 1st

Sess. (Alaska 1995); H.J.R. 2, 18th Leg., 1st Sess. (Alaska 1993).44. H.J.R. 5, 1997 Reg. Sess. (Conn.); S.J.R. 26, 1997 Reg. Sess. (Conn.).

45. S.J.R. 7, 77th Gen. Assembly, 1st Sess. (Iowa 1997); see H.J.R. 6, 76th Gen.Assembly, Reg. Sess. (Iowa 1995); S.J.R. 1176th Gen. Assembly, 1st Sess. (Iowa 1995).

46. H.J.R. 1006, 72d Leg. Assembly, 1997 Reg. Sess. (S.D.).47. A.J.R. 46, 93d Reg. Sess. (Wis. 1997). A unicameral measure was also intro-

duced in Wisconsin's 1995 legislative session. A.J.R. 56, 92d Reg. Sess. (Wis. 1995).

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Florida's constitutional revision commission narrowly defeated a1997 measure to eliminate one legislative chamber." During 1995sessions, legislators introduced measures proposing unicameralismin Maine,49 Massachusetts, ° Pennsylvania, 1 and Vermont, 2 andlegislation proposing the reform was introduced in the Californialegislature in 1993."3 California's Constitution Revision Commissioninitially adopted a unicameral recommendation in 1995,"4 but failedto send it to the legislature after several commissioners changedtheir votes.55

Debates over cameral choice are an enduring feature of stateconstitutional politics. Nonetheless, a great deal of misunderstand-ing exists regarding the character of U.S. bicameralism and the fun-damental institutional differences distinguishing U.S. bicameralismfrom the "classical" form of bicameralism as represented most nota-bly in the British Parliament. Indeed, the picture that George Norrisdrew of the historical origins of bicameralism in the United Statesstands in stark contrast to that drawn by modern historical research.Because bicameral outcomes set the constitutional standard againstwhich unicameral outcomes are compared (and vice-versa), it is nec-essary to identify and comment on the inaccuracies in Norris's ten-dentious version of bicameral history in the United States.56

B. THE HISTORICAL DISTINCTION BETWEEN "CLASSICAL" AND"REPUBLICAN" BICAMERALISM

Norris's criticism of bicameralism rested on two historicalclaims. First, that congressional bicameralism was copied from theexample of the British Parliament."v Second, that state bicameralism

48. Proposal No. 177, CRC 13-130-pr, Fla. Const. Rev. Comm'n. (1997-98). Theproposal was defeated on a 19-14 vote, Charles Elmore, Jennings Backs House-SenateMerger, PALM BEACH POST, Dec. 12, 1997, at 14A.

49. S.B. 658, 117th Leg., 2d Reg. Sess. (Me. 1995). The proposal was defeated inthe House on two votes of 66-32 and 100-45, Jay Higgins, Unicameral LegislatureTurned Down, BANGOR DAILY NEWS, June 20, 1995, at B1.

50. H.B. 5875, 180th Gen. Ct., 1996 Reg. Sess. (Mass. 1995).51. H.B. 1318, 179th Gen. Assembly, 1995-96 Reg. Sess. (Pa. 1995).52. PR 05, 1995-96 Leg. Sess. (Vt. 1995).53. A.C.A. 24, 1993-94 Reg. Sess. (Cal. 1993); S.C.A. 28, 1993-94 Reg. Sess. (Cal.

1993).54. Bill Stall, State Panel Proposes Government Shakeup, One-House Legislature,

L.A. TIMES, Aug. 12, 1995, at A19.55. State Panel Proposes Won't Push One-House Legislature, S.F. CHRON., Feb. 7,

1996, at A17.56. Norris's "process" criticisms of bicameralism will be considered in Part V

below.57. Norris stated in his article that "[in the main it was intended that the House

of Representatives, like the House of Commons, should represent the people and that

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was copied from the congressional example." If true, the two claimswould imply the inappropriateness of bicameralism for state legisla-tures. After all, first, the social and economic bases for British bi-cameralism do not exist in the United States: The British justifica-tion for bicameralism rests upon the classical theory of "mixed gov-ernment" in which nobles are allocated one parliamentary chamberand commoners are allocated the other. Because the political inter-ests of the social estates diverge, each needs the protection of a leg-islative veto against measures that would advance one estate's inter-ests at the expense of the other. In extolling the British example,Montesquieu thus wrote that nobles must "form a body that has aright to check the licentiousness of the people," but that the peoplemust also have their own chamber to "oppose any encroachment" bythe aristocracy.59 But, with no aristocratic class in the United States,

the Senate should be elected from the wealthy, aristocratic class, to represent the aris-tocracy." George W. Norris, The One-House Legislature, 181 ANNALS AM. ACAD. POL.& Soc. SCI. 50, 51 (1935); cf. Norris (1934), supra note 24, at 3277 which provides:

This House was intended to represent the people, as against property, andthus the checks and balances were completed with the idea that the rights ofproperty should always be safeguarded and protected, and the people them-selves should not have a direct voice, either in the selection of Members of theSenate, or in the selection of the President.

Id.In her recent article on Nebraska unicameralism, Kim Robak uncritically accepts

Norris's account of the origin of bicameralism in the U.S. national government:The legacy of two houses originated in England, where the House of Lordswas created to protect the rich aristocracy from the commoners in the Houseof Commons. Likewise, the American federal system, based on the Englishversion, was constructed as a check and balance. The Senate originally waselected by the state legislatures to represent the states or property....

Norris had no reverence for the time-entrenched system that originallywas premised on a caste system.

Kim Robak, The Nebraska Unicameral and Its Lasting Benefits, 76 NEB. L. REV. 795-96 (1997) (footnotes omitted, emphasis added); cf Orfield, 34 MICH. L. REV. at 35(noting that "the bicameral system [is] based on a division of persons into classes.").

Yet Norris's reading of the argument in The Federalist, if that is what it is, isproblematic. Madison rather suggests that bicameralism is a means of deterring aparticular legislature from accumulating power for itself at the expense of the public.To be sure, in Madison's view bicameralism would reduce the threat that a factionwould implement its preferred policies. This is not a result of the Senate existing torepresent "aristocratic" elements, but because it is more difficult for a factious leaderin either chamber to extend his or her influence to the other chamber. THEFEDERALIST NO. 62, at 379 (James Madison) (Clinton Rossiter ed., 1961).

58. Norris stated that "[in setting up new State institutions under the FederalGovernment, our forefathers followed the precedents established by the Federal Gov-ernment in dividing the legislative authority between two houses." Norris (1934),supra note 24, at 3277. Robak also uncritically follows Norris in asserting that"[wihen the states drafted their constitutions, they simply followed the federalmodel...." Roback, 76 NEB. L. REV. at 796.

59. 1 BARON DE CHARLES-LOUIS DE SECONDAT MONTESQUIEU, THE SPIRIT OF THELAWS 155 (1900).

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there is no reason to have a second legislative chamber as Britainhas. As for the second claim regarding state emulation of congres-sional bicameralism, the argument is that the example is not rele-vant to states because congressional bicameralism was adopted solelyas a practical compromise between large and small states. It wasthus the product of political expedience rather than political princi-ple, and consequently the example suggests no intrinsic merit thatwould commend state-level emulation.6 °

While the conclusions of each argument follow logically from thepremises, the historical premises of both arguments are, in fact,false. First, consider the claim that the new Americans simply bor-rowed bicameralism directly from the example of the British Parlia-ment. It should be initially recalled that British institutions did nothave the highest standing in the minds of the newly independentAmericans. The United States had just clashed with Britain in a warmotivated by Parliament's attempt to enforce its claim of legislativesupremacy over the colonies.6 As a result, as Joseph Story pointedout in 1833, the case for bicameralism in the U.S. had to overcome"all :the prejudices against a second co-ordinate legislative assembly"that were "stimulated by the exemplification of it in the British par-liament."" American governments thus adopted bicameralism inspite of the British example rather than because of the example. Fur-ther the claim that U.S. bicameralism is modeled on British bicam-eralism ignores the fundamental organizational differences distin-guishing the two types of bicameralism. Political leaders in the newstates were thoroughly republicanized. As discussed further below,modern historians have extensively documented that Revolutionary-era Americans largely rejected the application to the United States ofthe British "mix government" theory that would reserve one bicam-eral chamber for an aristocratic or propertied class." For example,

60. The United States Supreme Court expressed the view that federal bicamer-alism was a product of unique circumstances and, consequently, did not provide aprecedent for state emulation in Reynolds v. Sims, 377 U.S. 533, 574 (1964). The Su-preme Court noted that:

The system of representation in the two Houses of the Federal Con-gress... is one conceived out of compromise and concession indispensable tothe establishment of our federal republic. Arising from unique historical cir-cumstances, it is based on the consideration that in establishing our type offederalism a group of formerly independent States bound themselves togetherunder one national government.

Reynolds, 377 U.S. at 574 (citations omitted).61. See generally GREENE, supra note 9.62. 27 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 547 (1833), in 1

THE FOUNDERS' CONSTITUTION 378 (Phillip Kurland & Ralph Lerner eds., 1987) (em-phasis added).

63. WOOD, supra note 13, at 197-255; see generally MARC W. KRUMAN, BETWEEN

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1999] UNICAMERAL LEGISLATIVE SYSTEMS

historian Marc Kruman concludes his study of Revolutionary-era bi-cameralism by observing that "Americans of the founding era rejectedthe notion that the senate should represent property and the house,persons.'" Finally, it should be recalled that the framers of the U.S.Constitution insisted that the U.S. Senate was a thoroughly republi-can institution, not one established to represent a narrow class ofcitizens or interests."

Second, regarding the argument that states unthinkingly fol-lowed the national example of a bicameral congress in creating bi-cameral state legislatures: This claim initially overlooks the factthat congressional bicameralism cannot be the origin of state-levelbicameralism for the simple reason that the original, bicameral stateconstitutions were written before the bicameral national Constitutionof 1787 was even drafted. As discussed above, while Pennsylvania,Georgia and Vermont adopted unicameral legislatures during theRevolutionary era, all the other states adopted bicameral legislaturesafter separating from Britain in 1776. Indeed, the arguments at thefederal Constitutional convention regarding national-level bicamer-alism were often based on an appeal to the prior bicameral experi-ence of the states.66 It should also be recalled that prior to 1787, un-

AUTHORITY AND LIBERTY (1997).64. KRUMAN, supra note 63, at 153 (emphasis added). Even those who believed

in the benefit of aristocratic rule admitted that the model was inapplicable in theAmerican states, because they had not existed long enough for an aristocracy to havearisen. Thus, as a practical matter, republicanism was the only model applicable tothe U.S. state governments. Id. at 145. Indeed, "eight of the twelve constitution-writing states rejected the idea of singling out 'the senatorial part' of society for anupper house." Id. at 137 (emphasis added). Further, Revolutionary state constitutionsdid not generally substitute property owners for aristocrats in determining who wouldelect legislative upper chambers. Id. at 138.

65. In The Federalist No. 39, Madison wrote:[W]e may define a republic to be... a government which derives all its pow-ers directly or indirectly from the great body of the people, and is adminis-tered by persons holding their offices during pleasure for a limited period, orduring good behavior. It is essential to such a government that it be derivedfrom the great body of the society, not from an inconsiderable proportion or afavored class of it; otherwise a handful of tyrannical nobles, exercising theiroppressions by a delegation of their powers, might aspire to the rank of re-publicans and claim for their government the honorable title of republic.

THE FEDERALIST No. 39, at 241 (James Madison) (Clinton Rossiter ed., 1961).To be sure, State legislators originally elected U.S. Senators, but state legisla-

tures were, in turn, responsible to state voters.66. James Wilson, for example, drawing on the experience of state legislatures

with state-level "origination" requirements (cf. U.S. CONST. art. I, § 7, cl. 1 (statingthat '[a]ll Bills for raising Revenue shall originate in the House of Representa-tives .... .")), appealed from the experience of the states with the bicameral sequencingrequirement in arguing about its probable effect at the national level. See JAMESWILSON, LEGISLATIVE DEPARTMENT, LECTURES ON LAW (1791), in 2 THE FOUNDERS'CONSTITUTION 385, 385 (Phillip Kurland & Ralph Lerner eds., 1987).


der the Articles of Confederation, the national congress was a uni-cameral body.67 Thus, the states originally adopted bicameralism inspite of a national unicameral model. The early U.S. states adoptedbicameralism not out of deference to an empire they had just re-jected, and certainly not out of deference to a national example thatdid not yet exist, but largely out of their experience with legislativeand executive authority prior to and during the Revolutionary pe-riod. 8

Further, it is important to recognize the organizational differ-ences between British or "classical" bicameralism and American or"republican" bicameralism. Modern historical studies of the Ameri-can founding document the evolution of a novel American form of"republican" bicameralism that differs in critical aspects from the"classical" bicameralism of European mixed governments. 9 Britishcolonists naturally brought the theory of mixed government withthem to America.7 ° But upon separation from Great Britain, stateslacked an indigenous landed aristocracy and, hence, lacked the socialprerequisite for mixed government. Thus, as much out of social ne-cessity as of desire, new state legislatures had to be republican incharacter.71 Historians have extensively documented that this re-publican turn in American political commitments underlay an ex-tended reconsideration of the purpose of bicameralism during thefervid period of state constitution-making between 1776 and 1790.The debate circled around this issue: Since an aristocratic social es-tate did not exist in U.S. states as it did in Great Britain, why con-tinue to have second chambers if they simply represented the sameelectors and thus reflected the same institutional preferences asthose reflected by the first chamber?72 The debate over cameral

67. ARTICLES OF CONFEDERATION, art. V.68. See generally WILSON, supra note 66; KRUMAN, supra note 63, at 131-54; see

generally WOOD, supra note 13. See also JACK N. RAKOVE, ORIGINAL MEANINGS:POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 21, 31 (1996).

69. The theory of mixed government held that the government should be a bal-ance of the elements of monarchy, aristocracy, and democracy. This balance was re-flected in the legislature with a division, as in the British Parliament, between theHouse of Commons and the House of Lords. Lawrence D. Longley and David M. Olsonobserve that the "classic justification for legislative bicameralism is that institutionaldualism is necessary in order to reflect class or other deep cleavages evident in the soci-ety of the day." Two INTO ONE, supra note 7, at 1.

70. See generally GREENE, supra note 9; see generally WOOD, supra note 13;KRUMAN, supra note 63, at 132.

71. Even conservative Revolutionary-era Americans recognized that the theory ofmixed government had limited application to the new United States, simply becausethe country had not existed long enough to develop an aristocracy. KRUMAN, supranote 63, at 131-54; WOOD, supra note 13, at 197-255.

72. WOOD, supra note 13, at 197-255; KRUMAN, supra note 63, at 131-54.

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choice during this era was explicit and self-conscious. Summarizingthe state-level debates during this era, historian Gordon Wood writesthat, because state constitution-makers insisted on republicanizingboth legislative chambers, the "homogeneity of [social] orders" in theUnited States resulted in "two homogenous branches" in state bicam-eral legislatures.7" Wood concludes, "[t]he people in the new statesseemed to be electing the same kinds of persons to both houses of thelegislatures, thus creating a homogeneity of interest between the twobranches and destroying the purpose for instituting a mixed polity."74

U.S. bicameralism was fundamentally distinct from British "mixedgovernment" bicameralism.

George Norris attacked a form of bicameralism that simply hadnot existed in U.S. states. Indeed, his main argument regarding theanti-democratic implications of bicameralism responds to the British,mixed government form of bicameralism, not to the republican bi-cameralism practiced in the United States75

After the founding era, active consideration of issues of cameralchoice cooled until the Progressive era. Unicameral proponents thennested their discussion of cameral reform in a broad consideration ofhow the reform would affect traditional relationships among coordi-nate branches of government implied by the separation of powersdoctrine. Most suggestively for this study, this included a reconsid-eration of the role of judicial review in unicameral constitutional sys-tems. We now turn to consider their argument.

PART II. JUDICIAL REVIEW AS A SUBSTITUTE FOR ASECOND CHAMBER: THE HISTORICAL EXPECTATION

This Part revisits the now almost forgotten argument of unicam-eral proponents regarding the role of judicial review in unicameralconstitutional systems. It establishes the historical expectation thatjudicial review would at least partially substitute in unicameral sys-tems for the review otherwise accorded to legislation by the elimi-nated second chamber. The next Part draws on positive political the-ory to identify more specifically the constitutional weaknesses of uni-cameral legislative processes relative to bicameral processes, and tolink those weaknesses precisely to the means/ends inquiry U.S.courts apply when reviewing the reasonability of state legislationunder the Fourteenth Amendment.

During the Progressive-era debates on unicameralism, oppo-

73. WOOD, supra note 13, at 237; cf. id. at 214-44.74 Id. at 216; cf KRUMAN, supra note 63, at 145.75. See infra Part V.

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nents of the reform argued that eliminating second chambers wouldremove a crucial legislative check in state constitutional systems. Inresponse, unicameral proponents argued that the other branches ofgovernment could take up whatever slack in legislative oversightmight be created by the elimination of second chambers. They ar-gued that expanded judicial review of unicameral enactments couldsubstitute for the review provided by second chambers in bicameralsystems. On this point unicameral proponents were explicit. Norriswrote: "This same Uudicial] check [as exists over trial errors] wouldexist in legislative matters if we had the one-house legislature. If thelegislature exceeded its constitutional authority in the enactment ofany law, it would be set aside by the supreme court."'6 Unicameralproponents frequently appealed to the protection that judicial reviewwould afford in a unicameral system.7 7

Indeed, Progressive era unicameralists accused their critics ofignoring that heightened judicial scrutiny, which was based on thethen-broadly applicable doctrine of substantive due process," wouldvitiate the need for the added review of second legislative chambers.Barnett, for example, argued in 1915 that second legislative cham-bers were not necessary to check the actions of first chambers giventhe rigorous judicial scrutiny courts ordinarily applied when review-ing legislative enactments:

[Checks and balance] arguments [for bicameralism] implythe absence of effective constitutional restrictions upon leg-islative action, but are continually repeated in discussionsconcerning constitutions whose restrictions are enforcedagainst the legislature by the court, as in the case of Con-gress and the state legislatures today. Even American writ-

76. Norris, 181 ANNALS AM. ACAD. POL. & SOC. SCI. at 52. Norris, and otherproponents, also pointed to the veto power and citizen referenda as mechanisms thatplace a check on poor legislation.

77. Lester Orfield, a law professor, argued: "[A] unicameral legislature does notnecessarily entail the loss of proper caution in the passing of laws .... The supremecourt may throw out unconstitutional laws." Orfield, 34 MICH. L. REV. at 33. Orfieldalso argued that "it is by no means clear that unicameral legislatures will deal unfairlywith minorities" because "[t]he supreme court may still declare acts unconstitutional."Id. at 35. Johnson similarly argued that "the privilege of resorting to state and federalcourts for nullification of unconstitutional laws" is a "more effective deterrent[ ] tounwise and unjust legislation" than a second chamber and "would still be available torestrain improper ambitions on the part of the legislature." JOHNSON, supra note 14,at 93.

78. Under this doctrine, courts applied the liberty provision of the FourteenthAmendment's due process clause to strike down hundreds of state statutes seeking toregulate social and economic activity. See, e.g., Robert McCloskey, Economic Due Pro-cess and the Supreme Court: An Exhumation and Reburial, SUP. CT. REV. 34, 35(1962); GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 465-74(13th ed. 1997).

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ers generally seem to be entirely oblivious of the existence ofconstitutional limitations in this connection.

... "A history of state legislatures would be largely con-cerned with the successive development of various methodsof curtailing the almost absolute power which these bodiesoriginally possessed... This general movement has mani-fested itself in the transfer of legislative power from the leg-islatures to the courts, to the people, and to the governor."

The federal constitution in its original form placed variousrestrictions upon the legislatures of the States, and amend-ments, particularly the fourteenth amendment, have addedto these restrictions. The restrictions have marvelouslygrown at the hands of the courts....

.. "The courts, meantime, in many places, enter into theharvest thus provided for them with a light heart, and toopromptly and easily proceed to set aside legislative acts...There has developed a vast and growing increase of judicialinterference with legislation."79

Barnett's references to the "fourteenth amendment," to the fact thatcourts "too ... easily ... set aside legislative acts," and his claim thatthe U.S. had seen a "transfer of legislative power from the legisla-tures to the courts," are clear references to the expansion of judicialprerogative under the old substantive due process doctrine. But thecomplaining note of some of Barnett's quotations belies the point thathe was making regarding heightened judicial scrutiny under the doc-trine: It is precisely because courts were exercising a heightened re-view prerogative that Barnett concluded the checks and balancesprovided by second chambers were no longer necessary.8 0 Progres-

79. Barnett, 9 AM. POL. Sci. REV. at 455-57 (citations omitted).80. Senning makes a similar argument based on the transfer of legislative pre-

rogative to the courts during the era of substantive due process:The conditions which contributed to the imposition of constitutional restric-tions upon the scope of legislative authority and the corresponding expansionof the power of the electorate and the executive also strengthened the powersand functions of the state judiciary in relation to and at the expense of thelegislature by means of the doctrine ofjudicial review. In construing constitu-tions which, through successive decades, grew in length and great detail, thecourts applied to some of the enumerated powers the doctrine of express limi-tations and to others the doctrine of implied limitations. Within these doc-trines are hidden great possibilities of litigation at the instance of interestedparties by subjecting statutes to judicial scrutiny and possible judicial veto.As the right, claimed by the legislatures, of their own interpretation of theconstitution narrowed, that of the courts expanded .... As judicial review be-came a rationalization of the sovereign will as expressed in the states' funda-mental law, the people placed chief reliance upon the courts for protectionagainst infringement of their rights by the legislature.

SENNING (1937), supra note 14, at 15-16, 83.

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sive legislation often bore the brunt of judicial activism during thisera.sl Nonetheless, unicameral proponents assumed that the highlevel of scrutiny applied by courts to review state legislation wouldcontinue. The assumption that the judiciary would continue its rig-orous scrutiny of legislation played a pivotal role in the Progressivereconceptualization of checks and balances in unicameral constitu-tionalism.a2 The popular movement for unicameralism startedaround 1913 and extended through the late 1930s. The rise and fallof the doctrine of substantive due process is chronologically identifiedby a series of notable United States Supreme Court decisions thatextended from around 1897 through 1937.8 Notably, the unicameralmovement arose during the same period that saw the rise of an ac-tivist judiciary under the doctrine of substantive due process.

Questions remain regarding the exact contours of substantivedue process and precisely what triggered its application. 4 Nonethe-less, several aspects of the doctrine are clear, and these implicationsare what unicameral proponents had in mind when discussingheightened judicial review in unicameral systems. Under the Four-teenth Amendment requirement that states not deny liberty withoutdue process of law, the Court held state laws unconstitutional, unlessthey could be demonstrated to be "reasonable" impositions on lib-

81. See, e.g., McCloskey, SUP. CT. REV. at 34-35; GUNTHER & SULLIVAN, supranote 78, at 465-74.

82. The connection between second chambers and judicial review is subtly sug-

gested in other contexts as well. Walsh quotes an adage that second legislative cham-

bers exist "to provide the safety which lies in sober second thoughts." CORREA MOYLAN

WALSH, THE POLITICAL SCIENCE OF JOHN ADAMS: A STUDY IN THE THEORY OF MIXEDGOVERNMENT AND THE BICAMERAL SYSTEM 334 (1915). Justice Stone somewherepicked up on the phrase and linked it with the function of judicial review, concluding a

1936 address at Harvard Law School by arguing that "the constitutional standard of

reasonableness" that judges apply must "represent the sober second thought of the

community, which is the firm base on which all law must ultimately rest." Harlan F.

Stone, The Common Law in the United States, 50 HARV. L. REV. 4, 25 (1936) (emphasisadded).

83. There were antecedent cases, but the full-fledged emergence of economic dueprocess (or economic substantive due process) is often dated to begin in 1897 with the

Court's decision in Allegeyer v. Louisiana, 165 U.S. 578 (1897). By 1937, however, the

Court began consistently to apply a more deferential standard of review and never

subsequently sustained a substantive due process challenge to an economic statute.The Court hinted at more deferential review of economic legislation in Nebbia v. New

York, 291 U.S. 502 (1934). Nonetheless, invalidations continued on the basis of eco-nomic due process through 1937, with Thompson v. Consolidated Gas Utility. Corp.,

300 U.S. 55 (1937) being the last such decision. Recall that 1937 was the first year in

which the Nebraska unicameral legislature held a session, but the reform was adoptedin the 1934 election, long before the demise of substantive due process was widelyanticipated.

84. See supra note 79 and accompanying text. See generally HOWARD GILLMAN,

THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICEPOWERS JURISPRUDENCE (1993).

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erty.5 The Court during this era adapted a particularly rigorousform of Madison's means-ends criteria of good government as judi-cially enforceable criteria implied by the Fourteenth Amendment lib-erty guarantee. 6 As the Court held in its classic substantive dueprocess decision of Lochner v. New York:

The mere assertion that the subject relates, though but in aremote degree, to the pubic health, does not necessarily ren-der the enactment valid. The act must have a more directrelation, as a means to an end, and the end itself must beappropriate and legitimate, before an act can be held to be[constitutionally] valid . .."

The Court then independently inquired into the empirical basis forthe legislation: Whether the need for the legislation really existedand to what extent the law would contribute substantially to achievethat end.88 Critically, the Court did not defer to legislative fact-finding; it did not grant the empirical benefit of doubt to the legisla-ture regarding the need for the law or the relationship between thatneed and the statutory means adopted by the legislature to addressthat need.

In the now classic dissents to the Court's application of substan-tive due process in Lochner, the dissenting justices objected either tothe inquiry by courts into the empirical need for legislation or intowhether the appropriateness of the means implemented by the stat-ute constituted a judicial usurpation of legislative prerogative. Itwould become a refrain repeated for the next thirty years. JusticeHarlan, for example, wrote in dissent:

85. The United States Supreme Court stated:In every case that comes before this court... where legislation of this charac-ter is concerned and where the protection of the Federal Constitution issought, the question necessarily arises: Is this a fair, reasonable and appro-priate exercise of the police power of the State, or is it an unreasonable, un-necessary and arbitrary interference with the right of the individual to hispersonal liberty... ?

Lochner v. New York, 198 U.S. 45, 56 (1905), overruled in part by Day-Brite Lighting,Inc. v. Missouri, 342 U.S. 421 (1952), Ferguson v. Skrupa, 372 U.S. 726 (1963).

86. Madison wrote in THE FEDERALIST No. 62 that [a] good government impliestwo things: first, fidelity to the object of government, which is the happiness of thepeople; secondly, a knowledge of the means by which that object can be best attained."THE FEDERALIST No. 62, supra note 57, at 380. This is not to suggest that the Lochnercourt adopted the "means-end" language directly from Madison. But the vocabularyhad judicial application far in advance of 1905. See, e.g., Marshall's language inMcCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of theconstitution, and all means which are appropriate, which are plainly adapted to thatend, which are not prohibited, but consist with the letter and spirit of the constitution,are constitutional." McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819).

87. Lochner, 198 U.S. at 57-58.8& Id. at 58-63.

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If there be doubt as to the validity of the statute, that doubtmust therefore be resolved in favor of its validity, and thecourts must keep their hands off, leaving the legislature tomeet the responsibility for unwise legislation. If the endwhich the legislature seeks to accomplish be one to which itspower extends, and if the means employed to that end, al-though not the wisest or best, are yet not plainly and palpa-bly unauthorized by law, then the court cannot interfere. Inother words, when the validity of a statute is questioned, theburden of proof, so to speak, is upon those who assert it to beunconstitutional.

... [F]or the state is not amenable to the judiciary, in re-spect of its legislative enactments, unless such enactmentsare plainly, palpably, beyond all question, inconsistent withthe Constitution of the United States. We are not to pre-sume that the State of New York has acted in bad faith. Norcan we assume that its legislature acted without due delib-eration, or that it did not determine this question upon thefullest attainable information, and for the common good. 9

Harlan argued that judicial deference was warranted becausethere was no basis for assuming the state legislature's informationalprocesses were insufficient, or that the legislature acted for factiouspurposes rather than for the "common good." (We will see in the nextPart that the same cannot be said of unicameral enactments.)

Unicameral proponents lived in the Lochner world in which anactivist judiciary reviewed the empirical basis for the ends andmeans of legislation. While the proponents objected to the specificresults which they believed wrongly struck down Progressive legisla-tion, the existence of an active judiciary played a critical role in thesystem of checks and balances they outlined in unicameral constitu-tional systems. Progressive era proponents of unicameralism arguedthat heightened judicial review standards applied by the courts ofthat era made the oversight accorded by second chambers no longernecessary. In unicameral systems, the judiciary was expected to takeup the constitutional slack created by the absence of a second cham-ber.9°

89. Id. at 68-69, 72-73 (Harlan, J., dissenting) (emphasis added) (citations omit-ted).

90. Madison rejected facile invocation of the "separation of powers" as if therewere no appropriate overlap between the branches of government. Indeed, Madisonargued that a system of checks and balances is only possible with some overlap in thejurisdictions of the branches: "I shall undertake ... to show that unless [the legisla-tive, executive and judicial] departments be so far connected and blended as to give toeach a constitutional control over the others, the degree of separation which the

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A more deferential approach to legislative enactments may makesense in a bicameral context. But an argument for presumptive def-erence to legislative outcomes in bicameral systems does not trans-late into an argument for presumptive deference in unicameral sys-tems.91 To be sure, the era of substantive due process is widely con-

maxim requires, as essential to a free government, can never in practice be duly main-tained." THE FEDERALIST No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961).The Constitution does not contemplate an absolute separation of power between thebranches. Thus, the executive partakes of legislative power in being granted the veto(U.S. CONST. art. I, § 7, cl. 2; cf. NEB. CONST. art. IV, § 15); the legislative branch isgranted judicial power in its impeachment authority (U.S. CONST. art. I, § 2, cl. 5; id.art. I, § 3, cl. 6; cf. NEB. CONST. art. III, § 17); and the Senate is granted executivepower in its "advice and consent" authority (U.S. CONST. art. II, § 2, cl. 2; cf NEB.CoNsT. art. V, § 1). Similarly, Hamilton argued that the judiciary properly shares apart of the legislative power aside from enforcing explicit constitutional provisions:

[I]t is not with a view to infractions of the constitution only that the inde-pendence of the judges maybe an essential safeguard against the effects of oc-casional ill humors in the society. These sometimes extend no'farther than tothe injury of the private rights of particular classes of citizens, by unjust andpartial laws. Here also the firmness of the judicial magistracy is of vast im-portance in mitigating the severity and confining the operation of such laws.It not only serves to moderate the immediate mischiefs of those which mayhave been passed but it operates as a check upon the legislative body inpassing them ....

THE FEDERALIST NO. 78, at 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Ofcourse, the courts were not free from oversight either. They were to be bound by'strict rules and precedents," id. at 471, and were liable to impeachment for "malcon-duct," THE FEDERALIST No. 79, at 474 (Alexander Hamilton) (Clinton Rossiter ed.,1961), and for 'deliberate usurpations on the authority of the legislature." THEFEDERALIST No. 81, at 485 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

To be sure, the Nebraska Constitution provides that no branch "shall exerciseany power properly belonging to either of the others, except as hereinafter expresslydirected or permitted." NEB. CONST. art II., § 1 (emphasis added). But, unlike theU.S. Constitution, the Nebraska Constitution also expressly provides for judicial re-view of legislative acts. See NEB. CONST. art. V, § 2.

91. Nebraska state courts nonetheless followed the U.S. Supreme Court in ap-plying a deferential standard in reviewing statutory reasonability under both the stateand federal constitutions' due process and equal protection guarantees. The NebraskaSupreme Court echoes Harlan's dissent in Lochner in concluding that courts should bedeferential toward legislative decision-making. See, e.g., Distinctive Printing & Pack-aging Co. v. Cox, 232 Neb. 846, 858, 443 N.W.2d 566, 575 (1989) (citing Arant v. G.H.,Inc., 229 Neb. 729, 428 N.W.2d 631 (1988); Else v. Else, 219 Neb. 878, 367 N.W.2d 701(1985); Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776 (1967)).

The Williams case is a separation of power case holding that the Nebraska legis-lature cannot delegate legislative authority to Nebraska courts. The other two casescited as authority in Distinctive Printing, - Arant v. G.H., Inc. and Else v. Else - sim-ply reject the proposition that Nebraska courts can pass on general matters of publicpolicy as if they were legislators themselves. Nonetheless, there is an important pro-viso, as recognized in Else v. Else: "With respect to questions about a statute, our roleis limited to interpretation and application of statutes, irrespective of our personalagreement or disagreement with a particular legislative enactment, so long as a ques-tioned statute does not violate a constitutional requirement." Else v. Else, 219 Neb.878, 883, 367 N.W.2d 701, 704-05 (1985) (emphasis added). Of course, in reasonabil-ity litigation under the due process and equal protection provisions, specific constitu-tional requirements are cited. It thus begs the question to cite cases relating to the

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sidered to be an era in which the judiciary usurped the proper pre-rogative of state legislatures. This analysis does not challenge thatconclusion. But what must be recalled is that the doctrinal move-ment away from rigorous substantive due process oversight and to-ward more deferential judicial review was spearheaded by courtsworking within systems of bicameral constitutionalism. Eliminatingsecond legislative chambers, however, removes one of the constitu-tional checks and balances that is assumed in arguments for pre-sumptive judicial deference to legislative outcomes. Consequently,courts overseeing unicameral legislatures must develop a constitu-tional jurisprudence appropriate to the critical structural differencethat exists between unicameral constitutional systems and the sys-tems of bicameral states.

Developing a constitutional jurisprudence appropriate to the dis-tinctive qualities of a unicameral legislative system is taken up inthe next two Parts. Part III accounts more precisely why statutoryends and means are more constitutionally suspect when enacted by aunicameral legislature than when enacted by a bicameral legislature.Part IV then considers the level of heightened judicial scrutiny whichwould be appropriate to the constitutional weaknesses of unicamerallegislation.

PART III. CONSTITUTIONAL DEFICIENCIES OFUNICAMERAL ENACTMENTS: TWO POSITIVE THEORETICMODELS

This Part develops two positive theoretic models to compare uni-cameral and bicameral enactments. Model [1] suggests that unicam-

separation of powers and conclude that heightened inquiry under those two provisionswould constitute interference with legislative prerogative. Rather, the question is,given judicial review under either constitutional requirement, what is the appropriatelevel of scrutiny for courts to apply? The argument here is that the Nebraska Constitu-tion, by choice, developed a structure and relation unique to itself. Consequently, itsconstitutional jurisprudence must develop uniquely as well. Reasonability reviewunder due process or equal protection guarantees is already conceded. The argumenthere is that courts in a unicameral system should apply a more rigorous level of re-view. This was historically anticipated and is substantively justified in Part III, infra.If the court can never impinge on legislative prerogative, then not only is no form ofstricter scrutiny ever justified, but even minimal scrutiny would unconstitutionallyviolate the separation of powers and represent judicial usurpation of legislative pre-rogative. Yet the Nebraska Supreme Court has set aside legislative enactments evenunder the low standard of rationality review. See, e.g., Snyder v. IBP, Inc., 229 Neb.224, 229, 426 N.W.2d 261, 265 (1988) (stating that "[wie think it is apparent that thereis no rational basis for the classification made by the statues.. . ."). Courts applyintermediate levels of scrutiny, strict scrutiny, and even rationality review "with bite"(see Gerald Gunther, In Search of Evolving Doctrine on a Changing Court: A Model fora Newer Equal Protection, 86 HARv. L. REv. 1, 20 (1972)) all without ostensibly im-pinging on legislative prerogative.

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eral legislatures are more likely to pursue illegitimate governmentalpurposes relative to bicameral legislatures, and model [2] suggeststhat unicameral legislatures are more likely than bicameral legisla-tures to adopt inappropriate statutory means relative to the purposesthey seek to achieve. The models link the heightened suspicion ofconstitutionally undesirable legislative means and ends in Nebraskastatutes to the deficiencies of unicameral legislative processes. Theclassic "process" rationale for heightened judicial scrutiny is thustriggered by the use of a unicameral process in enacting legislation.92

Exactly what level of judicial scrutiny might be justified in responseto the constitutional weaknesses of unicameral enactments is dis-cussed in the subsequent Part.

Lawyers are accustomed to courts applying a two-prongedmeans/ends approach when reviewing the constitutional reasonabil-ity of statutes. Often overlooked, however, is that the Constitution'sframers themselves had earlier articulated their constitutional goalsusing this framework. For example, writing with regard to federal-level bicameralism, Madison observed in The Federalist No. 62 that"[a] good government implies two things: First, fidelity to the objectof government, which is the happiness of the people; secondly, aknowledge of the means by which that object can be best attained."3

Madison's criteria for good government stipulates that constitution-ally "good" legislation occurs when the legislature (1) seeks the publicor common good as its end (rather than the good of a "faction"); and,when choosing the legislative means to achieve that end, (2) the leg-islature has the requisite knowledge or information to adopt themeans reasonably calculated to secure that end. These criteria, forMadison, are not simply judicial review criteria - indeed, Madisonmade his statement when discussing the value of federal bicameral-

92. The U.S. Supreme Court has appealed to a "process" criterion for triggeringheightened judicial scrutiny in a variety of cases litigating issues as diverse as feder-alism, see, e.g., Printz v. United States, 521 U.S. 898, 930 (1997); New York v. UnitedStates, 505 U.S. 144, 168-69 (1992); cf Garcia v. San Antonio Metro. Transit Auth.,469 U.S. 528, 554 (1985)), intergovernmental tax immunity, see, e.g., Helvering v. Ger-hardt, 304 U.S. 405, 412 (1938); McCulloch v. Maryland, 17 U.S. 316, 428 (1819); thedormant commerce clause, see, e.g., South Carolina v. Barnwell Bros., 303 U.S. 177,184 n.2 (1938); and state statutes seeking to regulate political processes or touching on"discrete and insular" minority groups, see, e.g., United States v. Carolene Prod. Co.,304 U.S. 144, 152-53 n.4 (1938)); cf James R. Rogers, Legislative Incentives and Two-Tiered Judicial Review: A Game Theoretic Reading of Carolene Products FootnoteFour, 43 AM. J. POL. SCI. 1096 (1999).

93. THE FEDERALIST No. 62, supra note 57, at 380. Hamilton writes similarly:"It is a just observation that the people commonly intend the PUBLIC GOOD. Thisoften applies to their very errors. But their good sense would despise the adulator whoshould pretend that they always reason right about the means of promoting it." THEFEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

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ism - rather, for Madison, these are the goals of American constitu-tionalism broadly considered. The two positive theoretic models de-veloped below map the process deficiencies of unicameralism directlyonto these two constitutional dimensions of "good government."

Before turning to the models, however, a methodological ques-tion should be addressed: Why employ the positive theoretic modelsat all? While the models developed below are simple as such thingsgo in the scholarly economics and political science literature, theycan nonetheless prove daunting to the reader unfamiliar with thetype of reasoning they represent. As simple mathematical models,they are, of course, unrealistic representations of reality. But thevery unrealism of a model, if properly constructed, is what makes ituseful. The models developed below are intended to serve much thesame function as a street map of a city. If one compares a map of acity to the real topography of that city, it is certain that what is rep-resented on the map is a highly unrealistic portrayal of what the cityactually looks like. The map utterly distorts what is really there andleaves out numerous details about what a particular area looks like.But it is precisely because the map distorts reality - because it ab-stracts away from a host of details about what is really there - that itis a useful tool. A map that attempted to portray the full details of aparticular area would be too cluttered to be useful in finding a par-ticular location or too large to be conveniently stored. So it is withthe models presented below. They seek to abstract away from a hostof details that are not relevant for the purposes of comparing uni-cameral to bicameral outcomes. It is the very abstraction that per-mits us analytically to "hold everything else equal" and to focus onthe way the two alternatives might affect legislative outcomes. Ofcourse, everything is not equal, and details often matter. The trick,then - which is as much a matter of aesthetic taste as it is intellec-tual judgment - is to develop models that provide just enough detailto be useful for their intended purpose without being so complex as toconfuse rather than illuminate. 4

We now turn to consider the models and their implications.

A. UNICAMERAL PROCESS AND SELECTING LEGISLATiVE ENDS: THEFACTION MODEL

The founders' concern with the problem of faction is well known.But contrary to today's conventional wisdom, Madison's "factions"

94. Rasmusen calls the modeling approach used here "exemplifying theory" andconcludes that "[in this, economics combines the deductive reasoning of mathematicswith the analogical reasoning of law." ERIC RASMUSEN, GAMES AND INFORMATION: ANINTRODUCTION TO GAME THEORY 3 (2d ed. 1994).

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should not be identified with modern political parties. Rather, fac-tions, by Madison's famous definition, pursue illegitimate constitu-tional ends; that is, they pursue legislative ends inconsistent withthe public or common good. "[Factions are] a number of citizens,whether amounting to a majority or minority of the whole, who areunited and actuated by some common impulse of passion, or of inter-est, adverse to the rights of other citizens, or to the permanent andaggregate interests of the community." 5 Madison subsequently iden-tified the "great object to which our inquiries are directed" is "[t]osecure the public good and private rights against the danger of sucha faction.""6

The central threat of faction was that one group would gain holdof the reins of power and use it to oppress other groups, whether re-ligious, political, or economic.97 Bicameralism was thought to miti-gate this threat by increasing the difficulty of coordinating factiousaction across chambers.9" Two chambers would have different mem-bers, different leaders, different dynamics. If a factious leader coor-dinated factious legislation in one chamber, the other chamber mightstill block the deleterious legislation, and factious organization wouldbe more difficult to coordinate across two separate chambers relativeto organizing legislators in just one chamber.

The positive theoretic model developed here seeks to comparehow cameral choice affects the susceptibility of legislatures to theproblem of faction. It poses the same central legislative issue to bothcameral forms: Distributing policy benefits and taxes among groupsin the population. One reason that tax policy tends to be perenniallycontroversial is that it is rife with incentives for factious legislation.This central problem for republican legislatures was recognized early

95. THE FEDERALIST No. 10, at 78 (James Madison) (Clinton Rossiter ed., 1961).

96. THE FEDERALIST No. 10, supra note 95, at 80. Similarly, in Federalist No. 51:It is of great importance in a republic not only to guard the society against theoppression of its rulers, but to guard one part of the society against the injus-tice of the other part. Different interests necessarily exist in different classesof citizens. If a majority be united by a common interest, the rights of the mi-nority will be insecure.... In a society under the forms of which the strongerfaction can readily unite and oppress the weaker, anarchy may as truly besaid to reign as in a state of nature, where the weaker individual is not se-cured against the violence of the stronger ....

THE FEDERALIST No. 51, at 323-24 (James Madison) (Clinton Rossiter ed., 1961).97. THE FEDERALIST No. 10, supra note 95, at 79; cf THE FEDERALIST NO. 51,

supra note 96, at 323.98. Benjamin Rush similarly concluded in 1777: "There is safety in [bicameral]

government, in as much as each body possesses a free and independent power, so thatthey mutually check ambition and usurpation in each other." Benjamin Rush, Obser-vations on the Government of Pennsylvania (1777), in 1 THE FOUNDERS' CONSTITUTION364 (Phillip Kurland & Ralph Lerner eds., 1987). This was also one of John Adams'major concerns. Id. at 362.

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on. Madison described the obvious legislative incentive problem inThe Federalist No. 10:

The apportionment of taxes on the various descriptions ofproperty is an act which seems to require the most exact im-partiality; yet there is, perhaps, no legislative act in whichgreater opportunity and temptation are given to a predomi-nant party to trample on the rules of justice. Every shillingwith which they overburden the inferior number is a shillingsaved to their own pockets.99

This section models the distribution of taxes and policy benefits byunicameral and bicameral institutions. Two conclusions follow fromthe model. First, bicameral legislatures reject factious legislationthat would be adopted by unicameral legislatures.'00 Secondly, thecosts and benefits of policies adopted by bicameral legislatures aremore equitably distributed among state residents than are the costsand benefits of policies adopted by unicameral legislatures. The dis-tributive outcomes under unicameral processes are shown to be ofthe same form which result from acknowledged constitutionally sus-pect process failures. It deserves reiteration that unicameral propo-nents identified judicial review as a remedy to factious legislation.''

Outcomes Under Unicameralism

We consider an example in which there are three legislative fac-tions with three (representative) legislators. 2 The legislature willvote on a public works project. Taxes must be assessed to pay for thepublic works project, and excludable benefits will be created by theproject. 03 The project will produce a total (monetarily equivalent)benefit or value of B10 4 at a total tax cost of T.' °5 The proposal is notconstrained to be efficient (i.e., it is possible that B < T). 6 A legisla-

99. THE FEDERALIST No. 10, supra note 95, at 80 (emphasis added).100. Following Madison's use, "factious legislation" is defined here as a proposal

that would allot statutory benefits to one group for no public purpose while makinganother group that receives none of the benefits bear the cost of the policy.

101. Orfield argues that "it is by no means clear that unicameral legislatures willdeal unfairly with minorities" because "[t]he supreme court may still declare acts un-constitutional." Orfield, 34 MICH. L. REV. at 35 (emphasis added). Johnson writesthat "the privilege of resorting to state and federal courts for nullification of unconsti-tutional laws" is a "more effective deterrent[ ] to unwise and unjust legislation" than asecond chamber and "would still be available to restrain improper ambitions on thepart of the legislature." JOHNSON, supra note 14, at 93 (emphasis added).

102. Designate each legislator, 1L, i e I = U1, 2, 31.103. That is, policy benefits can be directed to one particular faction or legislative

district. A non-excludable project would have to be shared by the entire state.104. B e 9t.105. Te 91t.106. Efficiency is defined here as Kaldor-Hicks efficiency. A proposal is Kaldor-

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tive proposal, p, is a proposed distribution of the costs and benefits ofthe project among the three legislative factions.' 7 The value or"utility" of a proposal for each legislator (or faction), given that theproposal is adopted, is the net value of the distributed costs andbenefits to that legislator's district."' 8 If the proposal is not adopted,then legislators' payoffs are all zero.

A strategy for the proposing legislator is a proposal rule and avoting rule. A strategy for the non-proposing legislators is a votingrule. An equilibrium'0 9 strategy for a proposer is a proposal rule anda voting rule such that, given the strategies of the non-proposinglegislators, there is no proposal or voting rule that it could adopt thatwould provide it higher utility. An equilibrium strategy for the non-proposing legislators is a voting rule such that, given the strategiesof the proposing legislator and the other non-proposing legislator,there is no incentive for the non-proposing legislator to alter itsvote.

10

In order to focus on the effect cameral choice has on legislative

Hicks efficient if, upon implementation of the proposal, there is some conceivablemeans by which those gaining from the proposal could compensate those losing fromthe proposal in such a way that everyone is ultimately left at least as well off, and oneperson is strictly better. Kaldor-Hicks efficiency, however, does not require that thecompensation actually occur. See ALLAN M. FELDMAN, WELFARE ECONOMICS ANDSOCIAL CHOICE THEORY 142-44 (1980); RICHARD A. POSNER, ECONOMIC ANALYSIS OFLAW 12-14 (3d ed. 1986).

107. The distribution of the benefits to each faction is denoted by b,, i e (1, 2, 3),and the distribution of the costs to each faction is denoted by t,, i e 11, 2, 31. Note that

3 3B=Xb i andT= Yti.

i=1 i=1

Thus, a proposal is an ordered three-tuple,p = ((b1,tl),(b 2 ,t 2 ),(b3 ,t3 )) E (BxT) x (BxT) x (BxT).

108. Or, U, = b - t.109. The equilibrium concept applied in the analysis here is that of Nash equilib-

rium, named after its innovator, a recent recipient of the Nobel prize in economics. Anequilibrium is a Nash equilibrium if given the strategy of the other player(s), no playerhas an incentive to deviate to another strategy. This is the most popular equilibriumconcept in economic and political analysis and is treated in any standard game theorytext. See, e.g., DREW FUDENBERG & JEAN TIROLE, GAME THEORY 3-36 (1991).

110. Legislators are assumed not to play weakly dominated strategies and employonly subgame perfect strategies. The first assumption is common in election games torule out implausible equilibrium behavior. For example, it might be an equilibriumstrategy for a burdened, non-pivotal legislator to vote in favor of the burdening legisla-tion: because the legislator is not pivotal, there is no gain to be had by changing one'svote and voting against the proposal. Thus, burdening legislation adopted by aunanimous vote would be a Nash equilibrium. Ruling out weakly dominated strate-gies eliminates this type of implausible behavior from the equilibrium prediction.

The assumption that players play only subgame perfect strategies rules outequilibria that depend on non-credible threats being played off the equilibrium path.See, e.g., FUDENBERG & TIROLE, supra note 109, at 72-74.

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output, several stylized assumptions are made regarding proposalmaking and the length of the session. The legislature meets for oneperiod and during that period considers one proposal. That proposalmay be accepted or rejected by the legislature. To capture the diffi-culty of coordinating across bicameral chambers, we assume a ran-dom recognition rule for selecting the legislator who may make theproposal, so each legislator has a chance a priori to make the pro-posal. A proposal wins if a majority of legislators vote for it.111 Eachlegislator votes for a policy and associated tax scheme when the netbenefit of the proposal to the legislator's district is at least zero andagainst it otherwise.112 The next proposition follows immediately:

PROPOSITION III.A. 1: EQUILIBRIUM UNICAMERAL OUTCOMES.Under a closed-rule, with random recognition, and the iden-tified voting strategies, a unicameral legislature will alwaysadopt a factious proposal in which one district receives theentire benefit of the proposal while a different district bearsthe entire cost of the proposal. 113

No matter which legislator proposes, that legislator's district receivesthe entire benefit of the policy and one of the other legislators' dis-tricts must bear the entire tax burden. Each proposal wins by a voteof two to one. No legislator has the incentive to deviate from its pro-posal or voting strategy. It is easy to check that these are equilib-rium proposal strategies. A proposing legislator simply needs twovotes. The proposing legislator gaining the benefit will of course votefor the proposal. Given one vote for the proposal and one voteagainst (the legislator whose district bears the tax), suppose the leg-

111. Legislator i votes for a proposal, p, if Vi(p) = 1, and votes against a proposal ifVi(p) = 0. The legislature adopts a proposal if:

Vi(p) > 2

112. The following proposition is stated without proof: The equilibrium votingrule for each legislator i with respect to proposal, p, is defined by:

Vip l=Iif bi - t i >!0V 1p 0if bi -ti < 0,

There is no equilibrium in proposal and voting strategies in which the indifferent leg-islator votes against the proposal. Given that voting strategy on the part of the "indif-ferent" legislator, the proposing legislator must propose some net gain to at least oneof the other legislators. But whatever net gain is proposed to the other legislator, theproposer can reduce it even further. There is no minima in a open set around zero.Thus, the proposer can always come up with another proposal in which his or her dis-trict does better, which overturns the candidate equilibrium.

113. Formally, one of the following proposals are made and are adopted in equilib-rium:

A. If legislator 1 proposes: p = ((B,0), (0,0), (0,T)) or ((B,0), (0,T), (0,0)).B. If legislator 2 proposes: p = ((O,T), (B,0), (0,0)) or ((0,0), (B,0), (0,T)).C. If legislator 3 proposes: p = ((0,T), (0,0), (B,0)) or ((0,0), (0,T), (B,0)).

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islator whose district receives (0,0) under the proposal votes for theproposal. In that case the legislator's district receive no benefits andpays no tax. If the legislator votes against the proposal, the payoff isagain zero. Therefore, the legislator has no incentive to deviate andvote against the proposal. Therefore, the factious proposal wins inequilibrium by a vote of two to one.

We now turn to propose the same "faction" problem to a bicam-eral legislature and compare the outcome under the two cameralforms. The comparison motivates the conclusion that unicameraloutcomes are rightly suspected of being factious relative to bicameraloutcomes. The result justifies heightened judicial scrutiny of uni-cameral outcomes relative to bicameral outcomes. Indeed, theUnited States Supreme Court's process jurisprudence justifiesheightened judicial scrutiny of similarly skewed distributions of pol-icy costs and benefits that result from legislative process failures."'

Outcomes Under Bicameralism

In each chamber, the legislators represent the same districts andhave the same preferences as in the unicameral case (hence, thismodels republican bicameralism). As in the unicameral case, if alegislator is indifferent to a proposal, it will vote in favor of that pro-posal. In the case of the second-moving chamber, an indifferent leg-islator will propose that the bill be sent to the second chamber by thefirst chamber. As with unicameral decision-making, one legislator ineach chamber is recognized by a random recognition rule to propose abill. Each chamber acts in a separate period, and the period endswhen a chamber approves or rejects a proposal. If the first movingchamber does not adopt a bill in period 1, then the game ends at thatpoint. There is no conference committee option."

114. For example, the distribution of benefits and burdens that concerned JusticeStone in interstate context in South Carolina v. Barnwell Bros. are those "regula-tions.., whose purpose or effect is to gain for those within the state an advantage atthe expense of those without. . ... " South Carolina v. Barnwell Bros., 303 U.S. 177, 184-85 n.2 (1938). For an extended discussion of the relationship between the distributionof costs and benefits and a failure in republican political processes, see generallyRogers, 43 AM. J. POL. SCI. 1096.

115. Less than ten percent of bills went to a conference committee in the last Ne-braska bicameral legislature. See infra note 150 and accompanying text. This is con-sistent with congressional practice. Most adopted bills go neither to a conferencecommittee nor get sent back by one chamber to the other for reconsideration. At thenational level, 80 to 90 percent of legislation never goes to a conference committee, Seegenerally LAWRENCE D. LONGLEY & WALTER J. OLESZEK, BICAMERAL POLITICS:CONFERENCE COMMITTEES IN CONGRESS 190-91 (1989), and 70 percent of legislation isunamended by the other chamber, GARY W. COX & MATTHEW D. MCCUBBINS,LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE 11 (1993). While this isa stylized model, it arguably comports with the ability of minority legislators to have

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Recall that in the unicameral legislature, if legislator 1 was rec-ognized to propose, its district will receive the entire benefit of thepolicy while imposing the entire cost on another district."6 This isdenoted P, for "unicameral proposal." For simplicity in the discus-sion, in both chambers we simply designate "legislator 1" as the leg-islator representing the district that receives the entire benefit of thebill, "legislator 2" as the legislator representing the indifferent dis-trict, and "legislator 3" as representing the taxed district.

This leads directly to the first proposition characterizing bicam-eral outcomes relative to unicameral outcomes.

PROPOSITION III.A.2: BICAMERAL OUTCOMES. The factiousproposal (Pu) that is always adopted by the unicameral leg-islature is rejected with positive probability by the bicamerallegislature."7

This follows directly from the difficulty of coordinating action acrosstwo different chambers that vote on the same proposal. Unlike theequilibrium outcome if PU were proposed in the unicameral legisla-ture, the bicameral legislature will sometimes reject this proposal. Ifthe taxed faction's legislator is recognized in the second chamber tomake the proposal, that legislator will kill the first chamber's bill."'The first difference between bicameral and unicameral outcomesidentified by this illustration is that bicameral processes result in alegislature rejecting a proportion of factious legislation that the legis-lature would enact if it used a unicameral process. That is, all things

some influence on the agenda by being able to bottle up measures in a committee orother means of formal or informal influence. Similarly, a conference committee couldbe used to coordinate majority proposals between the chambers. Here, again, refer-ence is simply made to already existing norms in which committee members are typi-cally appointed to conference committees and that conference committee membersoften advance chamber goals relative to partisan goals in conference. See, e.g.,LONGLEY & OLESZEK, supra.

116. The legislators equilibrium proposal would be P, = ((B,0), (0,0), (0,T)) or P=((B,0), (0,T), (0,0)).

117. In this stylized model, the probability of P, being rejected by the bicamerallegislature is one-third. That is, the highly unequal proposal that is always adopted bythe unicameral legislature is rejected one-third of the time by the bicameral legisla-ture. Of course, the precise probability is a figment of the stylized model.

118. In equilibrium, with the indifferent faction voting for the proposal, and withthe indifferent faction proposing P, in the second acting chamber, the expected payoffto the proposing legislator for proposing P, in the first acting chamber is:2

EUI(Pu) = 1B.

The expected payoff, given recognition, is no longer B because the legislator repre-senting faction three will be recognized in the second chamber with one-third prob-ability. That legislator would prefer to kill P, if it were sent from the first-movingchamber. After all, if the taxed legislator proposes the bill sent from the first-movingchamber, its faction would realize a payoff of -T > 0. If the legislator kills the bill sentfrom the first-moving chamber then the payoff to its faction will be 0.

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held equal, a unicameral legislature can be properly suspected of en-acting more factious legislation than a bicameral legislature.

But the difference between bicameral and unicameral outcomesis more than that some factious proposals would be adopted by a uni-cameral legislature that would be rejected by a bicameral legislature.The nature of the bills proposed (and adopted) also changes as a re-sult of the existence of a second chamber. The bicameral legislaturewill not simply reject inequitable policies; rather, it will enact moreequitable policies than the unicameral legislature. For example, aproposal in which the district that receives a policy's benefit also it-self pays for the entire cost of the policy would be a proposal thatwould be enacted with probability one by both bicameral chambers. 9

This is a more equitable proposal than the unicameral legislaturewould have enacted. Note that with this proposal, unlike the uni-cameral case, the district that receives the benefits of the policy bearsthe expense of the policy. This is precisely the constitutionally desir-able (or the constitutionally inoffensive) outcome that should be ex-pected from policies enacted without democratic process failures. 2 °

With a unicameral process, however, inequitable (and inefficient)burdens will be distributed across legislative districts and will not beremedied by the ordinary (unicameral) legislative process. This isthe classic justification for heightened judicial oversight according tothe process criterion.

The following proposition states the conclusion in summaryform.

PROPOSITION II.A.3: Bicameralism produces policies thatare never less equitable than unicameralism, and are some-times more equitable. The greater the proportion of benefitsto costs, the more likely the bicameral legislature is toequally distribute the benefits and costs relative to the dis-tribution the unicameral legislature would enact.' 2 1

119. P, = ((B,T), (0,0), (0,0)). Using backward induction, with indifferent legisla-tors sponsoring the bill in the second-moving chamber, and with indifferent legislatorsvoting for the bill in the first-moving chamber, it is obvious that this bill will beadopted unanimously by both chambers of the legislature, provided that B > T. Thereare, of course, other proposals that would be accepted in equilibrium.

120. See supra note 114 and accompanying text.121. Specifically, using a bicameral process, the first chamber's proposer will

propose:

[A] Pu if1B<T, or

[B] P2 if3B_>T.

The proposition states that bicameralism produces (weakly) more equitable legislationthan does unicameralism. The proof of this proposition contains no more than a coupleof lines of algebra. Because P2 is adopted with certainty in both chambers, the ex-

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While unicameralism always results in a legislature enacting inequi-table distributions of costs and benefits, bicameral processes neverenact an inequitable policy when a unicameral process would haveenacted a more equitable policy, and the greater the benefits allo-cated in a bill, the more likely it is that a bicameral process will re-sult in a distribution of costs and benefits that is strictly more equi-table than would have been enacted using a unicameral process. Theintuition supporting the link between the size of a policy's benefitsand the incentive for a legislator to propose a more equitable ratherthan a less equitable distribution of the bill's costs and benefits isstraight forward: If a proposal has a large benefit relative to its cost,then the proposer is better off if its district receives that benefit netof cost with certainty relative to the net gain of receiving the policy'sbenefit, while pushing the cost onto another district, but having todiscount that gain by the probability that the proposal will be killedin the second chamber.

The model presented above leads to two conclusions comparingbicameral outputs to unicameral outputs. First, bicameral legisla-tures will often reject factious legislation that would be adopted byunicameral legislatures. Secondly, bicameralism creates an incentivesystem that induces legislators to propose more equitable policiesrelative to unicameralism. Bicameralism, of course, is not a legisla-tive panacea. Factious legislation can survive bicameral decision-making as well. Nonetheless, relative to unicameral legislatures,bicameral legislatures prevent adoption of factious legislation in thefirst place and promote adoption of more equitable policies in the sec-ond. Further, there is no case in which factious legislation would beadopted by a bicameral legislature when it would not be adopted by aunicameral legislature. The unicameral legislative process lacks theincentives legislators have in bicameral systems to propose and enactobjectively fairer distributions of policy costs and benefits. Unicam-eral legislative systems can thus be generically suspected of enactingmore factious legislation, both quantitatively and proportionally,relative to that enacted in bicameral systems.

pected payoff for legislator 1 proposing P is EU,(P,) = B - T. Recall that2 1

EU,(PI) = 2 B. When - B<T,

then EU(P) > EUI(P2) and legislator 1 is better off proposing Pu relative to P. WhenI B > T, legislator 2 is at least as well off or strictly better off proposing P2 instead of

Pu. This leads directly to the conclusion contained in Proposition II.A.4. Clearly, if1B< T and Pu is adopted by the legislature, then the bicameral outcome is as inequitableas the outcome would have been in a unicameral legislature. But when 1 B > T and P2is proposed and adopted, then the bicameral outcome is strictly more equitable thanthe unicameral outcome for the same values of B and T.

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B. UNICAMERAL PROCESS AND SELECTING LEGISLATIVE MEANS: THEINFORMATION MODEL

Although not often receiving attention as a distinct constitu-tional interest, legislative information is 'a crucial component in tai-loring a law to address a policy problem and, thus, is an issue of sig-nificant constitutional importance. Indeed, Madison argued that thelack of informed legislators was a greater problem for legislaturesthan the pernicious problem of faction, 122 and fostering informed leg-islators was a subject of recurring interest to the writers of The Fed-

eralist.123 Even earlier, the informational basis of legislative action -whether a distant Parliament could obtain the requisite informationto legislate for the happiness of the colonies relative to the local and,hence, more informed colonial assemblies - was one of the centraldisputes provoking the American Revolution. '24 This concern withinformative legislatures was subsequently reflected in the develop-ment of a constitutional jurisprudence in which judicial scrutiny oflegislative "reasonability" included reviewing the empirical basis thelegislature had for believing that the statutory means it adoptedwould actually achieve the statute's purpose. At bottom, the intui-tion on the informational superiority of bicameral processes is nodeeper than that suggested in the adage, "two heads are better thanone." That is, two independent legislative assessments of the empiri-

122. Madison writes in THE FEDERALIST No. 62:A good government implies two things: first, fidelity to the object of gov-

ernment, which is the happiness of the people; secondly, a knowledge of themeans by which that object can be best attained. Some governments are defi-cient in both these qualities; most governments are deficient in the first. Iscruple not to assert that in American governments too little attention has beenpaid to the last.

THE FEDERALIST No. 62, supra note 57, at 380 (emphasis added); cf James Madison'searlier complaint in THE FEDERALIST No. 62: "It may be affirmed.., that no smallshare of the present embarrassments of America is to be charged on the blunders ofour governments; and that these have proceeded. from the heads rather than thehearts of most of the authors of them." Id. at 379.

123. See generally, THE FEDERALIST NOS. 35, 36 (Alexander Hamilton), NOS. 53,56 (James Madison).

124. As early as the 1760s, the colonists had linked the issue of "no taxation with-out representation" not simply to a distributional complaint over Parliamentary ends,but also to an informational complaint regarding Parliaments ability to legislate ap-propriate statutory means. James Otis, for example, relied on an informational ra-tionale to argue that even direct American representation in the British parliamentwould be inadequate for American purposes:

No representation of the colonies in parliament alone, would, however, beequivalent to a subordinate legislative [sic] among themselves .... It wouldbe impossible for the parliament to judge so well of their abilities to beartaxes, impositions on trade, and other duties and burthens, or of the locallaws that might be really needful, as a legislative [sic] here.

James Otis, The Rights of the British Colonies Asserted and Proved (1764), in GREENE,supra note 9, at 29.

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cal state of the world that a policy is drafted to address will increasethe odds that the statutory means enacted will actually achieve thestatute's purpose. 25 In the older judicial vocabulary, the choice ofmeans is a question of the "wisdom" of a legislative enactment. Aswith the appropriateness of judicial responses to "unjust" factiousproposals issuing from a unicameral legislature, so, too, unicameralproponents explicitly stated that the judicial prerogative should ex-tend to reviewing the "wisdom" of the statutes that unicameral leg-islatures enact. 12

1

The model developed in this section examines the effect cameralchoice has on the ability of a legislature to tailor its choice of legisla-tive means to a given end. The model shows that bicameral consid-eration of a proposal increases the probability that the legislatureadopts the appropriate means to achieve a given end relative to uni-cameral consideration. That is, bicameral decision-making actuallyresults in better laws being adopted than would be adopted using aunicameral process. This is summarized in the following proposition.

PROPOSITIONIII.B.1. The statutory means selected by a bi-cameral legislature to achieve a given end will more likelyachieve the given legislative end than the statutory meansselected by a unicameral legislature, and thus will generatea higher social value to legislation than statutes enacted bya unicameral legislature.

The formal motivation for this claim is somewhat lengthy and so is

125. For example, James Wilson argued:[Many] reasons... may be assigned, why all the advantages, to be ex-

pected from two branches of a legislature, may be gained and preserved,though those two branches derive their authority from precisely the samesource....

[These include a] double source of information, precision, and sagacity inplanning, digesting, composing, comparing, and finishing the laws, both inform and substance.

JAMES WILSON, OF GOVERNMENT, THE LEGISLATIVE DEPARTMENT, LECTURES ON LAW

(1791) in 1 THE FOUNDERS' CONSTITUTION 378 (Phillip Kurland & Ralph Lerner eds.,1987) (emphasis added).

Joseph Story argued similarly:[Als legislation necessarily acts, or may act, upon the whole community, andinvolves interests of vast difficulty and complexity, and requires nice adjust-ments, and comprehensive enactments, it is of the greatest consequence to se-cure an independent review of it by different minds, acting under different,and sometimes opposite opinions and feelings.. . . An appellate jurisdiction,therefore, that acts, and is acted upon alternatively, in the exercise of an in-dependent revisory authority, must have the means, and can scarcely fail topossess the will, to give it a full and satisfactory review.

27 STORY, supra note 62, at 380.126. Johnson writes that "the privilege of resorting to state and federal courts for

nullification of unconstitutional laws" is a "more effective deterrent[ ] to unwise andunjust legislation" than a second chamber. JOHNSON, supra note 14, at 93 (emphasisadded).

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reported in the Appendix. It is only briefly described here. Two ver-sions of the same bill are considered by a unicameral legislature anda bicameral legislature. The means used to achieve the given end inone version of the bill is better than the other version, depending onempirical conditions that are not known with certainty, and whichaffect the outcome of the selected policy. The policy outcomes re-sulting from each cameral form are then compared. PropositionIII.B.1 is true regardless of whether the first/unicameral chamber ismore or less informed than the second chamber. That is, bicameral-ism produces a net social value over unicameralism not simply be-cause each chamber can specialize in different subjects and the moreinformed chamber will have the most influence on legislation, butalso because the existence of two chambers and the possibility of aconference committee creates a process through which information isaggregated and, hence, the probability of making a wrong legislativedecision is lower.

This model illuminates an informational rationale for bicamer-alism: Bicameral decision-making produces better legislative out-comes than does unicameral decision-making. This occurs becausethe policies adopted by two chambers are based on a more accurateempirical assessment of the world compared to when only one cham-ber makes the choice and, hence, bicameral policies are better tai-lored to achieve the given ends of the policy. Second chambers neverdecrease the probability that a legislature will adopt an appropriatestatutory means to achieve a given end, but can often increase it sub-stantially. The legislation that a unicameral legislature enacts willmore consistently employ legislative means that are inappropriatelytailored to achieve the given end. Hence, increased scrutiny bycourts of legislative means in unicameral systems is warranted com-pared to the scrutiny that courts provide in bicameral systems.

While the degree of judicial deference to legislative prerogativerepresented, for example, by the dissenters in Lochner might be ap-propriate for legislation produced in a bicameral context, there is nei-ther historical nor substantive justification for its application in aunicameral constitutional system. It has been shown that a unicam-eral legislative process tends to produce constitutionally more sus-pect legislation than does a bicameral process. Unlike the action ofthe New York legislature that Harlan considered in his dissent, themodels discussed in this Part demonstrate that there is reason tosuspect the quality of the information underlying unicameral legisla-tion and that there is reason to suspect whether unicameral legisla-

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tion is "for the common good."127 Along both prongs of the judiciary'sreasonability doctrine, unicameral process lacks what bicameral pro-cess provides. Consequently, judicial review standards developed toreview bicameral legislative outcomes are inappropriately deferentialwhen applied to review unicameral outcomes. This conclusion, how-ever, would not have surprised the unicameralists. They recognizedthat cameral reform would change the legislative process and wouldchange the previously established relationships between coordinatebranches of government. Unicameral proponents assumed the con-tinuation of rigorous judicial scrutiny as a necessary part of the sys-tem of checks and balances in unicameral constitutional systems.According to the unicameralists, courts would at least provide a par-tial substitute for the role second chambers played in bicameral leg-islative processes. We now turn to consider what particular reviewstandards might be appropriate to the particular weaknesses towhich unicameral legislative systems are suspect.

PART IV. APPROPRIATE JUDICIAL REVIEW STANDARDS INUNICAMERAL LEGISLATIVE SYSTEMS

Nebraska courts have followed federal courts in adopting a def-erential approach when reviewing ordinary social and economic poli-cies.12 The positive theoretic models developed in Part III and thehistory of the unicameral reform discussed in Part II show that theNebraska unicameral reform implies an appropriately heightenedrole for the judiciary in its constitutional system relative to the roleof the judiciary in bicameral systems. Specifically, the models devel-oped in Part III show that the absence of a second chamber increasesthe probability a legislature will enact factious legislation and de-creases the probability that the means a legislature chooses to rem-edy a policy problem will be reasonably related to the statute's pur-pose. These results map directly onto the two prongs of "reasonabil-ity review" performed by courts under the U.S. Constitution's and theNebraska Constitution's equal protection129 and due process 1 30 re-

127. Recall Harlan's conclusion: "[W]e are not to presume that the state of NewYork has acted in bad faith. Nor can we assume that its legislature acted without duedeliberation, or that it did not determine this question upon the fullest attainable in-formation, and for the common good." Lochner v. New York, 198 U.S. 45, 73 (1905)(Harlan, J., dissenting) (emphasis added), overruled in part by Day-Brite Lighting, Inc.v. Missouri, 342 U.S. 421 (1952), Ferguson v. Skrupa, 372 U.S. 726 (1963).

128. See infra notes 129-30 and accompanying text.129. U.S. CONST. amend. XIV. Even before Nebraska adopted an explicit guaran-

tee of equal protection in its constitution ("No person shall be ... denied equal protec-tion of the laws," NEB. CONST. art. I, § 3) the Nebraska Supreme Court had held thatarticle III, section 18 of the Nebraska Constitution forbidding special legislation "con-cerns itself with disparate treatment in much the same manner as does the language

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quirements. Because unicameral legislative processes produce con-stitutionally more suspect legislation along both prongs relative tobicameral legislatures, courts reviewing unicameral outcomes should

of [the Fourteenth Amendment of the U.S. Constitution], which prohibits a state frommaking or enforcing any law which denies any person within its jurisdiction 'the equalprotection of the laws.'" Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846,849, 443 N.W.2d 566, 570 (1989) (citations omitted). The standard of review the Ne-braska Supreme Court adopted was identical to that applied under the FourteenthAmendment: "The Nebraska Constitution and the U.S. Constitution have identicalrequirements for equal protection challenges." Pick v. Nelson, 247 Neb. 487, 498, 528N.W.2d 309, 318 (1995) (citations omitted).

The Nebraska Supreme Court upholds a regulation under both the U.S. and Ne-braska Constitutions if "the special class has some reasonable distinction from othersubjects of like general character, which distinction bears some reasonable relation tothe legitimate objectives and purposes of the legislation." State v. Popco, Inc., 247 Neb440, 443, 528 N.W.2d 281, 283 (1995). The Pick court stated that "[c]lassifications thatdo not involve a suspect class or fundamental right are tested for rational basis ...Thus, a party attacking a statute as violative of equal protection under the state andfederal Constitutions has the burden to prove that there was no rational basis for theclassification." Pick, 247 Neb. at 498, 528 N.W.2d at 318 (citations omitted).

Of course, under deferential review, the legislature need not adduce evidencesupporting the rationality of the statutorily selected means to remedy identified evil.A statute will be upheld if it is "founded upon a reasonable distinction, or difference instate policy, or if any state of facts can reasonably be conceived which would sustainthe classification." Snyder v. IBP, Inc., 229 Neb. 224, 226-27, 426 N.W2d 261, 264(1988) (citations omitted).

This echoes United States Supreme Court standards. Justice Thomas provided astandard statement of the federal standard in Federal Communications Commission v.Beach Communications, Inc.:

In areas of social and economic policy, a statutory classification that neitherproceeds along suspect lines nor infringes fundamental constitutional rightsmust be upheld against equal protection challenge if there is any reasonablyconceivable state of facts that could provide a rational basis for the classifica-tion. Where there are "plausible reasons" for Congress' action, "our inquiry isat an end." . .. [T]hose attacking the rationality of the legislative classificationhave the burden "to negative every conceivable basis which might support it."... [Tihe absence of "legislative facts" explaining the distinction "[o]n the rec-ord" has no significance in rational-basis analysis. In other words, a legisla-tive choice is not subject to courtroom fact finding and may be based on ra-tional speculation unsupported by evidence or empirical data.'

Federal Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, 313-15 (1993) (citations omitted).

130. U.S. CONST. amend. XIV; cf NEB. CONST. art. I, § 3. The Nebraska SupremeCourt will uphold legislative regulations as constitutionally permissible impositions onliberty if they are "reasonable means to ... legitimate state ends." Distinctive Print-ing, 232 Neb. at 855, 443 N.W.2d at 573. Similarly:

Statutes which are reasonably designed to protect the public safety, health,morals, and general welfare do not violate the Constitution where the statuteoperates uniformly on all within a class which is reasonable ....

•.. The extent to which the Legislature may exercise the police power, anattribute of state sovereignty, is primarily a matter of legislative judgment,but the purpose of the regulatory matter must be ligitimate [sic] and themeans employed to effect it must be reasonable ....

Bridgeford v. U-Haul Co., 195 Neb. 308, 312-14, 238 N.W.2d 443, 447-48 (1976) (cita-tions omitted).

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apply more rigorous standards of review than they need to (orshould) when reviewing bicameral outcomes. Just what standardscourts should apply when reviewing state unicameral enactments isdiscussed in this Part.

Given that there is both an historical and a substantive basis forless deferential judicial review of unicameral enactments, just howless deferential should that review be? We have seen that unicamerallegislatures are (1) more likely to pursue illegitimate, factious poli-cies that distribute policy benefits and costs inequitably relative tobicameral legislatures; and (2) are less likely to choose the appropri-ate legislative means relative to a given end (again, relative to bi-cameral legislatures). The implications of models 1 and 2 map di-rectly onto the constitutional means-ends inquiry that courts applywhen reviewing legislation. Model 1 demonstrates that factionalpolicies are easier to achieve in a unicameral legislature relative to abicameral legislature. Thus, in a unicameral system, courts need toscrutinize the legitimacy of legislative purposes more rigorously thanthey need to in a bicameral system. Model 2 demonstrates that aunicameral legislature is more apt to adopt an unreasonable statu-tory means relative to a bicameral legislature. Thus, courts in a uni-cameral system should inquire more rigorously into the reasonabilityof empirical judgments upon which statutory means are based. Wenow turn to consider what appropriate standards might be in light ofthe particular weaknesses of unicameralism, and in light of the com-petence of courts to scrutinize unicameral legislation for those weak-nesses.

The judiciary today scrutinizes the reasonability of legislativemeans and ends with differing levels of rigor. The level of rigorcourts adopt is often linked to the specific nature of the legislativeprocess that produced the legislation.' We begin our discussion ofan appropriate unicameral review standard by considering the next"higher" level of scrutiny above that of rationality review, the rela-tively new constitutional test of "intermediate scrutiny." This stan-dard requires that a statutory classification be "substantially relatedto an important governmental objective."' To date, it "has been ap-plied to content-neutral restrictions that place an incidental burdenon speech, to disabilities attendant to illegitimacy, and to discrimina-tion on the basis of sex."' And, although in doctrinal flux, the

131. See supra note 92 and accompanying text.132. Clark v. Jeter, 486 U.S. 456, 461 (1988); cf Heckler v. Mathews, 465 U.S.

728, 744 (1984); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980); Craig v.Boren, 429 U.S. 190, 197 (1976).

133. United States v. Virginia, 518 U.S. 515, 568 (1996) (Scalia, J., dissenting)(citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Mills v. Habluetzel, 456

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United States Supreme Court has also applied a form of intermediatereview to scrutinize governmental restrictions on commercialspeech.'

A. STANDARDS FOR REVIEWING LEGISLATIVE MEANS

The critical difference between deferential "rational means"scrutiny of legislation and the requirement that legislatures demon-strate a "substantial relation" to a governmental purpose is that, un-der the substantial basis test, the burden of proof shifts to the legis-lature to demonstrate to the court in some manner that the meansadopted by the legislature will be likely to achieve the statutory pur-pose. This does not mean that a court must hold what amounts to alegislative hearing on a law. It does, however, imply that the legisla-ture must demonstrate that there is at least "substantial evidence"underlying its legislative judgment. The United States SupremeCourt discussed the nature of evidentiary review under intermediatescrutiny in Turner Broadcasting System, Inc. v. Federal Communica-tions Commission:

The expanded record now permits us to consider whetherthe must-carry provisions were designed to address a realharm, and whether those provisions will alleviate it in a ma-terial way....

In reviewing the constitutionality of a statute, "courtsmust accord substantial deference to the predictive judg-ments of Congress." Our sole obligation is "to assure that, informulating its judgments, Congress has drawn reasonableinferences based on substantial evidence."'35

U.S. 91 (1982); Craig, 429 U.S. at 197).134. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S.

557, 564 (1980). Relevant here is that, if the speech is lawful, then the Court inquireswhether the government asserts a substantial interest in the regulation, whether theregulation "directly advances" the asserted interest, and whether the regulation is'more extensive than necessary." Central Hudson, 447 U.S. at 591 (Rehnquist, J, dis-senting). Recently, a majority of the Court could not agree on the continuing appro-priateness of applying the Central Hudson test to commercial speech. See 44 Liquor-mart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Of interest in this context, however, isthat under this test "the State bears the burden of justifying its restrictions ... it mustaffirmatively establish the reasonable fit we require." Board of Trustees v. Fox, 492U.S. 469, 480 (1989) (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,647 (1985)).

135. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (emphasis added)(citations omitted) (quoting Turner, 512 U.S. at 665-66). Of course, it could be possibleto give the courts a more substantive involvement in reviewing legislative judgmentswithout necessarily violating the separation of powers:

This is not a case in which we are called upon to give our best judgmentas to the likely economic consequences of certain financial arrangements orbusiness structures, or to assess competing economic theories and predictivejudgments, as we would in a case arising, say, under the antitrust laws.

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In order to discharge constitutional responsibilities in reviewingthe "reasonability" of legislation, courts often review the informa-tional or evidentiary basis for legislation. Given that unicamerallegislatures aggregate information worse than bicameral legislaturesin their legislative processes, applying a scrutiny more rigorous thanrationality review would have courts reverse the presumption of con-stitutionality, and engage at some level in reviewing the reasonabil-ity of the empirical basis for legislation. Provided there is a constitu-tional basis warranting more rigorous scrutiny - as has been arguedabove - this sort of judicial inquiry need not represent judicial usur-pation of legislative prerogative.3 6

B. STANDARDS FOR REVIEWING LEGISLATIVE ENDS

Turning to the other prong of the reasonability test, what is theappropriate level of scrutiny that courts should apply to reviewstatutory purposes under unicameralism? As noted above, interme-diate review requires that ends be "substantial." That seems toohigh of a standard for ordinary social and economic legislation.Nonetheless, Model 1 does suggest that unicameralism facilitatesfactious legislation relative to bicameralism. A higher level of scru-tiny relative to the ability to "conceive" a legitimate purpose - butless than requiring that the purpose be "substantial" - would be tomeasure the scrutiny not against purposes contrived in a court room,but against purposes that actually motivated or could be reasonablypresumed to have motivated a legislature.

Justice Brennan long advocated that the reasonability of legisla-tive purposes be measured against actual as opposed to merely con-ceivable legislative purposes.13 v While a majority of the Supreme

"Statutes frequently require courts to make policy judgments. The ShermanAct, for example, requires courts to delve deeply into the theory of economicorganization." See Holder v. Hall, 512 U.S. 874, 966 (1994) (separate opinionof Stevens, J.). The issue before us is whether, given conflicting views of theprobable development of the television industry, Congress had substantialevidence for making the judgment that it did. We need not put our imprima-tur on Congress' economic theory in order to validate the reasonableness of itsjudgment.

Turner, 520 U.S. at 207-08; cf. 44 Liquormart, Inc., 517 U.S. at 505 (articulating thestandard in commercial speech cases that "the State bears the burden of showing notmerely that its regulation will advance its interests, but also that it will do so 'to amaterial degree.").

136. Recall that when two chambers agree on the informational basis for legisla-tion, courts and other observers can deduce that the probability the legislature chosethe appropriate means is higher than if only one chamber were to adopt that policy.There is a statistical basis for higher judicial deference to a bicameral decision relativeto a unicameral decision.

137. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 182, 188 (1980)(Brennan, J., dissenting); cf Kassel v. Consolidated Freightways Corp., 450 U.S. 662,

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Court has never embraced Brennan's suggestion, in a concurringopinion in U.S. Railroad Retirement Bd. v. Fritz, Justice Stevens ar-gued for a modified version of Brennan's view. The claim being liti-gated in that case asserted that the purpose of the legislation underreview was factional - that is, its purpose was to redistribute wealthfrom one class to another for no valid public purpose. Stevens wrote:

Justice Brennan is... correct in reminding us that eventhough the statute is an example of "social and economiclegislation," the challenge here is mounted by individualswhose legitimate expectations of receiving a fixed retirementincome are being frustrated by, in effect, a breach of a sol-emn commitment by their Government. When Congress de-prives a small class of persons of vested rights that are pro-tected - and, indeed, even enhanced - for others who are ina similar though not identical position, I believe the Consti-tution requires something more than merely a "conceivable"or a "plausible" explanation for the unequal treatment.

I do not, however, share Justice Brennan's conclusion thatevery statutory classification must further an objective thatcan be confidently identified as the "actual purpose" of thelegislature. Actual purpose is sometimes unknown. Moreo-ver, undue emphasis on actual motivation may result inidentically worded statutes being held valid in one State andinvalid in a neighboring State. I therefore believe that wemust discover a correlation between the classification andeither the actual purpose of the statute or a legitimate pur-pose that we may reasonably presume to have motivated animpartial legislature. If the adverse impact on the disfa-vored class is an apparent aim of the legislature, its impar-tiality would be suspect. If, however, the adverse impactmay reasonably be viewed as an acceptable cost of achievinga larger goal, an impartial lawmaker could rationally decidethat that cost should be incurred."3 8

The test that Stevens suggested is more deferential than the "sub-stantial purpose" test of intermediate review. Nonetheless, the leg-islature is not free to assert merely conceivable, but admittedly posthoc, rationalizations for its legislation when in court. It must be ableto persuade a judge that the purpose being defended actually moti-vated the legislature or would be sufficient to have motivated adop-tion of the policy by an impartial - i.e., a non-factious - legislature.

679-80 (1981) (Brennan, J., concurring). Gerald Gunther first advanced the idea ofhaving rationality review "with bite" by having courts judge the rationality of classifi-cation systems with "actual" legislative purposes rather than merely conjectural or'conceivable." Gunther, 86 HARV. L. REV. at 20-24.

138. Fritz, 449 U.S. at 180-81 (Stevens, J., concurring).

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Putting the two parts of the above discussion together, we cannow suggest a constitutional reasonability test appropriate to reviewunicameral legislation: An ordinary social or economic measureadopted by a unicameral legislature is constitutionally reasonable if ithas a substantial relation to an actual, legitimate governmental pur-pose, or a legitimate governmental purpose that could be reasonablypresumed to have motivated an impartial legislature. In this formu-lation, the standard of review for legislative means and ends is onlyone step above the deferential rationality standard. To be sure, it iscertainly possible that even higher levels of scrutiny are justified bythe arguments developed here, but courts properly show reticence toget overly involved in policy issues beyond that minimally necessaryto discharge their constitutional obligations.

PART V. ARE THERE OFFSETTING PROCESS ADVANTAGES

TO UNICAMERAL SYSTEMS?

The argument developed above is that unicameral legislativeprocesses are weaker than bicameral legislative processes along twoconstitutionally relevant dimensions. George Norris's argument forunicameralism, while focusing on the claim that second chamberswere an unnecessary expense for states (particularly during the De-pression of the 1930s),139 also asserted several process advantages for

139. Norris (1934), supra note 24, at 3277, 3279, argued:[W]hy should we not eliminate some of the things which have been found un-necessary and cumbersome, as well as expensive, in these State legislatures?Why should the Legislature of Nebraska have two branches instead of one?... The qualifications of members of both branches of our State legislature

are exactly the same. They represent exactly the same idea. The official du-ties they are to perform are of exactly the same nature. Why should we thenhave two bodies instead of one, and burden our taxpayers with the necessarilyincreased expense, to attain the object that can be fully attained by one houseinstead of two?

The plan outlined in the proposed amendment to the constitution wouldsave money for the taxpayers. ... Many thousands of dollars would be savedannually to our taxpayers. The expense of the legislature is not only the sal-ary that is paid to its members. There are hundreds of other items which en-ter into the expenses of a legislature, all of which increase as the membershipincreases.

One of the objects to be attained in the proposed plan is to decrease taxa-tion. We have reached a time in this depression when the importance of thissubject cannot be overestimated.

Id. at 3277, 3279.Jeremy Bentham asserted a similar argument:

The existence of two chambers, each sharing in legislation, will, accord-ing to Bentham, involve useless delay in the process of legislation. To pass alaw will then necessarily cost double the amount of effort. The same docu-ments, witnesses, and most of the arguments will have to be presented in bothchambers.

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unicameralism. This Part considers the claim that, even if unicam-eralism suffers from process deficiencies relative to bicameralismalong the constitutional dimensions discussed above, it nonethelessbrings with it its own offsetting process advantages and, hence,heightened judicial review is not necessarily appropriate for statesgoverned by unicameral legislatures.14 °

Norris advanced three general criticisms of bicameral processes:that second chambers were generally anti-democratic institutions;that the use of conference committees for reconciling inter-chamberlegislative disagreements persistently frustrated the representativeprocess; and that the existence of two legislative, chambers dimin-ished electoral responsibilities of legislators because voters have dif-ficulty following the actions of two state legislators. We considereach criticism in turn.

First, Norris argued that second chambers were aristocratic,anti-democratic institutions. He consistently argued that bicamer-alism was designed particularly to protect property against the peo-ple by creating one chamber in which "the rights of property" wouldbe protected and the other chamber that would represent the people"against property."' 4 ' As pointed out in Part II.B, however, Norrisconsistently conflated the classical bicameralism of Britain's Parlia-ment (in which commoners elected one chamber but aristocrats con-trolled the other) with the "republican" bicameralism as practiced inthe United States (in which the same set of electors select the legisla-tors for both chambers). Contrary to Norris, modern historians con-cluded "Americans of the founding era rejected the notion that thesenate should represent property and the house, persons."1 Addi-tionally, even, if Norris's characterization of the "aristocratic" elec-

Rockow, 22 AM. POL. Sci. REv. at 583. Johnson reported that the first session of theNebraska unicameral legislature in 1937 cost $150,000. The cost of the last bicamerallegislative session in 1935 cost $202,500. JOHNSON, supra note 14, at 142. Nonethe-less, the benefits of bicameralism in the form of better legislation identified by themodels in Part III can be translated in social value as well for comparison with themodest cost advantage of unicameralism. Given the potential magnitude of socialvalue conferred by second chambers, it is entirely likely that unicameralism may be areform that is "penny wise, but pound foolish."

140. If the process argument for heightened scrutiny of unicameral state legisla-tures is correct, does it also imply the appropriateness of heightened scrutiny for thedecisions of city and other local governments because their legislative powers are al-most universally committed to unicameral bodies? The answer is no, because there isno analogous process argument even though the legislative authority of local govern-ments is typically exercised by a unicameral assembly. Unlike state governments,local governments have no sovereign attributes. Being wholly creatures of the state,see, e.g., Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907), their legislative powers anddecisions are already subject to state legislative oversight.

141. Norris, 181 ANNALS AM. ACAD. POL. & SOC. SCI. at 51.142. KRUMAN, supra note 63, at 153 (emphasis added).

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toral base of second chambers in state legislatures was once true, it issimply no longer relevant to modern state legislatures which, as amatter of constitutional law, have no choice but to apportion bothchambers on the basis of population. 4 ' Finally, as demonstrated bythe positive political models developed above, second chambers inrepublican bicameral systems are actually representation enhancinginstitutions. Bicameralism helps guarantee that both the means andends of legislation will actually promote the common good, ratherthan serve a narrow segment of the polity or fail to achieve the pur-pose at which the legislation aims.

Next, Norris objected to the practices of the conference commit-tees of his day. Its "work is performed.., in secret," he complained,without records of its deliberation or votes.'44 It is selected "by thepresiding officers of the different branches" and thus is not subject tofull legislative accountability.' 4 ' Its compromises are offered under aclosed rule to the parent chambers and, hence, are not subject toregular amendment.146 There are several problems with Norris's ar-gument. First, while Norris insisted that conference committees area necessary evil for bicameral systems,'47 the truth is quite the oppo-site. There are any number of alternative reconciliation mechanismsfor bicameral disagreements that do not involve conference commit-tees. 4' In fact, the New Jersey legislature, for example, has not useda conference committee since 1973, and 34 of the 52 national bicam-eral legislatures do not use conference committees to reconcile bi-cameral disagreements. 49 Further, contrary to textbook descriptions

143. See generally Reynolds v. Sims, 377 U.S. 533 (1964).144. Norris (1934), supra note 24, at 3277.145. Id.146. Id.147. Norris concluded that "I am not objecting to the conference committee in any

legislature consisting of two houses, because I know of no other method that has everbeen devised that can handle disagreement between the two houses." Norris, 181ANNALS AM. AcAD. POL. & Soc. Sci. at 54; cf Norris (1935), supra note 24, at 1635;Norris (1934) supra note 24, at 3277.

148. There are a number of bicameral agreement mechanisms other than the con-ference committee. The most often used agreement mechanism is "motioning" (and issometimes called the "shuttle" or "navette"). This occurs when chambers send legisla-tion back and forth until both can agree on the same wording. Fifty-two out of fifty-three bicameral countries currently employ motioning (although not necessarily exclu-sively) as an agreement mechanism. TSEBELIS & MONEY, supra note 7, at 55;LONGLEY & OLESZEK, supra note 115, at 23. Additionally, in the face of bicameraldisagreement, 13 bicameral countries have both chambers meet and vote in a commonassembly. In 31 countries, one of the chambers provides the definitive vote. Usuallythe lower chamber is accorded the definitive vote, but some legislatures provide it towhichever is the initiating chamber. In a couple of countries, new elections are calledin the event of intractable bicameral disagreement.

149. TSEBELIS & MONEY, supra note 7, at 55, 56-62.

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of "how a bill becomes law," few bills actually go to conference com-mittees. For example, of the 301 bills enacted by one chamber of thelast Nebraska bicameral legislature in 1935, only 26 (8.6 percent)went to a conference committee. 150 The numbers are similar for otherstates and at the national level.' 5'

Additionally, Norris's complaints that conference committeemeetings were held in secret and appointments are made at the un-checked discretion of the presiding officers in each chamber areanachronistic today. Since the 1960s, wide-ranging reforms havebeen made in the practice of state and national legislative conferencecommittees to open up their deliberations and to make them moreaccountable to their parent chambers. 52 While the conference sys-tem may have been abused by legislatures in the 1930s, modern daylegislatures have the tools available to them to remedy Norris's ma-jor complaints against the conference system. And if conferencecommittees still continue to distort bicameral outcomes, then theycan simply be banned with little trouble to bicameral processes.

A third criticism advanced by Norris and others against bicam-eralism was that it diminished electoral responsiveness. He assertedthat the complicated process of having two separate chambers con-sider the same bill simply confuses voters and reduces the possibilitythat responsible legislators would be held accountable at the polls.1 53

While this is a possibility, what little evidence there is suggests thatNebraskans do not differ at all in the attention they pay to their leg-islature relative to voters in bicameral states.1 54 After all, in additionto state legislators, voters must pay attention to a President, twoU.S. Senators, one House member, and a welter of additional stateand local elected officials, all who influence the policies that affectvoters. Indeed, most voters in Nebraska and other states cannotidentify their state legislators, let alone identify them with particularpolicy positions. In such a circumstance, it is not obvious that the

150. These numbers were derived from examining the reports of actions on bills.SENATE J. OF THE LEGIS. OF THE ST. OF NEB., 50th Sess. (1935); HOUSE J. OF THELEGIS. OF THE ST. OF NEB., 50th Sess. (1935).

151. See supra note 115.152. See generally LONGLEY & OLESZEK, supra note 115.153. Norris, 181 ANNALS AM. ACAD. POL. & SOC. Sci. at 55; Norris (1934), supra

note 24, at 3277-78; cf Barnett, 9 AM. POL. Sci. REv. at 460 (stating "[bicameralism]prevents concentration of the attention of the public upon the operations of their rep-resentatives, and gives opportunity to the representatives to evade responsibility fortheir actions.").

154. See Peverill Squire, Professionalization and Public Opinion of State Legisla-tures, 55 J. POL. 479 (1993). Indeed, Squire found that Nebraskans actually paid lessattention to their legislature than people in other states, but the difference was notstatistically significant. Squire, 55 J. POL. at 483.

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existence of one more elected official for a second legislative chambercontributes much to the ostensible inability of voters to hold statelegislators accountable for the actions they take.

Further, it is unclear that unicameralism actually decreases theopportunities legislators have to shift the blame to someone else: Iflegislators do not have the members of another chamber to blame forfailed policies or inaction, they can still shift simply shift blame tothe other legislators in the one chamber. There is no reason to be-lieve, nor any evidence to suggest, that the elimination of one legisla-tive chamber increases legislative accountability to voters, let alonethat this type of failure, if it exists, would imply that there is no needfor the increased scrutiny of courts to compensate for unicameralweaknesses as justified in the argument above.

While unicameralism may carry with it some benefits - most no-tably in the form of (modest) cost savings from the elimination of onelegislative chamber - there are no discernable, constitutionally rele-vant process advantages that unicameralism confers that could offsetthe process deficiencies that unicameralism introduces. While statesmay choose to eliminate one legislative chamber for reasons of cost orlegislative efficiency, the separation of powers doctrine implies thatthere must be a increase in the rigor of judicial review to substitutefor the loss of legislative review otherwise accorded by second cham-bers.

CONCLUSION

The elimination of a second legislative chamber necessarily af-fects the checks and balances of a state's constitutional system. Uni-cameral proponents insisted that the check of a second chamber wasnot necessary because courts and other institutions would take upwhatever constitutional slack was left by its elimination. Nebraskacourts, however, neglected to follow up on this expectation and recon-sider their role in the modified system of checks and balances thatresulted from the state's unique constitutional choice. Consequently,by applying the same standards of judicial review as applied bycourts in bicameral systems, Nebraska courts have been inappropri-ately deferential to the legislature when reviewing its enactments forconstitutional reasonability. Nebraska's unique constitutional struc-ture requires its courts to develop an equally unique constitutionaljurisprudence.

Drawing on two positive theoretic models comparing unicameraland bicameral legislative processes, this article discussed the level ofjudicial review that would be appropriate given the constitutionalweaknesses of unicameral outcomes. The comparison demonstrated

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1999] UNICAMERAL LEGISLATIVE SYSTEMS 111

that the ends and means of legislation are more constitutionally sus-pect when a product of a unicameral legislature than when they are aproduct of a bicameral legislature. The discussion in Part IV thenconsidered the level of heightened review that might be appropriateunder Fourteenth Amendment reasonability requirements to at leastpartially compensate for the constitutional weaknesses of unicamer-alism. Finally, whether unicameralism enjoyed any compensatingprocess advantages relative to bicameralism was discussed in Part V.None was found. The implication remains that given the historicalexpectation of unicameral proponents and the substantive positivetheoretic arguments developed above, that courts reviewing the ordi-nary social and economic enactments of the Nebraska unicamerallegislature should apply a higher level of scrutiny than they cur-rently provide. While a highly deferential "rationality" review maybe appropriate when reviewing the ordinary enactments of state bi-cameral legislatures, it is inappropriately deferential given Ne-braska's unique legislative system.


APPENDIX:FORMAL DISCUSSION OF INFORMATIONAL MODEL AND

RESULTS

The unicameral model is only a simple version of the bicameral

model, so the latter is set out first. In this model there are three pos-

sible actors: Chamber 1, chamber 2 (which always act), and a confer-

ence committee (cc), which may or may not be called. I = {1, 2, cc) is

the set of institutional actors. The chambers consider two versions

("means") of a bill on the same subject matter, 1 c L = (A, B). Each

proposed statutory means is best in one of two states (s) of the world

without confusion, named A and B, s r S = (A, B). For simplicity,

either state of the world occurs a priori with equal probability, pr(s =

A) = pr(s = B) i 0.5.155

The chambers and the conference committee share common pref-

erences over the outcomes, described by:

(App. 1)

P = u(I = AIs = A) = u(I = Bis = B) > u(01.) = 0 > u(1 = Als = B) = u(1 = Bls = A) = -P'

where P e R, is the social value of the bill. Enacting statutory means

A in state A is better than adopting no bill, which is better than en-

acting statutory means A in state B.

The chambers and the conference committee (if held) observe a

signal that is private to the institution, and a public signal communi-

cated by the actions of institutions in previous periods. Institutional

beliefs about the true state of the world are derived from these sig-

nals. The nature of the private signals received by each chamber and

the conference (if held) is discussed first. Analysis of the implications

of the model draws on several different probability measures.156 Be-gin with:

155. This assumption can be relaxed without significantly altering the resultsderived below, but it provides a great deal of economy.

156. See, e.g., JACK HIRSHLEIFER & JOHN G. RILEY, THE ANALYTICS OFUNCERTAINTY AND INFORMATION 170-208 (1992).

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(APP. 2)i., pr(m Is), mi = M= {a,b},sE* {A,B}, iE (1, 2, cc), tE 11,2,3,4).

This expresses the conditional probability that institution i receives

private message m given state s in period t.157 Each institution thatholds a session observes a private signal, m1 e {a,b}, i e {1, 2 ,ccl, that

is correlated with the true state of the world, qa.A = qb., > 0.5.

(Similar results to those illustrated below could be obtained without

requiring that qaoA = qb' but the equality permits greater simplic-

ity and also permits the conditional probabilities to be abbreviated by

= qa= qboB") In general, q' q for ij, i,j E 11, 2, cc).

The value of q for i E (1, 2, cc) is assigned in period zero. While

the content of the message is private knowledge, the correlation value

of each institution's signal with the true state of the world is common

knowledge. Other useful probability measures are:

(APP. 3)qmt = the unconditional probability of i c {1,2,cc} receiving message m

in period t.

(APP. 4)i't

Is = the unconditional (prior) probability of state s for institution i in period t.

(APP. 5)St

in s = the joint probability of state s and message m for institution i

in period t.

(APP. 6)i't

Isom = the conditional probability of state s, given message m in pe-riod t for institution i.

As noted, chambers receive signals from the other chamber (in the

form of a bill) or from the conference committee (in the form of a billrecommendation). Before considering the social value added by a

second chamber, it is useful to consider the informative value of uni-cameral legislature in the following example.

157. Chamber 1 acts in period 1, chamber 2 in period 2, the conference committee(if it is called) in period 3, and both chambers consider the conference proposal in pe-riod 4 (if it exists). More general results are available from the author.

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PROPOSITION APP. 1. Legislative means adopted by a uni-cameral legislature will achieve a given end with a prob-ability equal to or greater than 50 percent, and the legisla-tion will produce positive social value.Let there be one legislative chamber which acts in period 1 and

let it observe signal a (i.e., mu = a). Let q' = 0.6. Without confusion,i,t ul I uI

qm.s = qa.A = qbB- q Because there is only one chamber updatingfrom a prior probability of 0.5, the expected payoff if the unicamerallegislature were to vote for A given that mu = a is: qUp + (1q)(_p) =

(0.6)P - (1 - 0.6)P = (0.2)P > 0. The unicameral chamber of coursehas no incentive to deviate and vote for B given that m' = a. (If itwere to do so its payoff would be P(1 - 2qu)P = - (0.2)P < 0.)

Now add another chamber (chamber 2) to the legislature and re-designate the unicameral chamber as chamber 1. Consider the fol-lowing proposition.

PROPOSITION III.B.1. The statutory means selected by a bi-cameral legislature to a achieve a given end will more likelyachieve the given legislative end than the statutory meansselected by a unicameral legislature, and thus will generatea higher social value to legislation than statutes enacted bya unicameral legislature.

Proposition III.B.2 is true regardless of whether the first/unicameralchamber is more or less informed than the second chamber. That is,bicameralism produces a net social value over unicameralism notsimply because each chamber can specialize in different subjects andthe more informed chamber will have the most influence on legisla-tion, but also because the existence of two chambers and the possi-bility of a conference committee creates a process by which informa-tion is aggregated and, hence, the probability of making a wrong de-cision is subsequently lower.

First consider the example when the second chamber is betterinformed than the first chamber, i.e., when q' > q'. Specifically, let q"= 0.6, q2 = 0.7, and q' = 0.7. Recall that the "unicameral" chamber isredesignated as the "first" bicameral chamber. As before, it receivesa signal correlated with the true state of the world, q' = 0.6, and letthe first/unicameral chamber again receive the message mu = a. (The

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argument given mu = b would be strictly analogous.) Given that thefirst/unicameral chamber observes only one signal regarding the truestate of the world, its posterior probability regarding the state of theworld is just the prior probability, or qs= qu = ,

Now consider the marginal expected value of a second chamber.Three matrices organize the probability computations for heuristicclarity. First, a likelihood matrix reports the conditional probabilitythat chamber 2 receives a particular message in period 2, q'. Theprior probability for a second chamber in the next period would justbe the posterior probability of the first/unicameral chamber in period1. 22 U 0.6, and B2 ,2 =-qU= 0.4. The likelihood matrix

therefore is:

Messages (m)

e,2 a bA 0.7 0.3

States (s)B 0.3 0.7

Table 1

Secondly, a joint probability matrix reports the probability of thestate being s and the message being m, or

j 2,2 .2,2 __[n12,2 2,2Js(m',m 2)]=t s q(m',

2 )os1 .

Messages (m)

j2,2 a bA 0.42 0.18

States (s)B 0.12 0.28

qm 1 0.54 0.46

Table 2

A potential posterior matrix can be calculated from Table 3.2,

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l2,2

p 2,2 = [J,2l~m

2 ]'.(M1, M2)] 2,2

Messages (m)

i2,2 a b

A 0.778 0.391States (s)

B 0.222 0.609

Table 3

With a bicameral legislature, there is always the possibility that thechambers will choose an additional message service in the form of aconference recommendation. So the respective matrices for the con-ference committee are developed here as well. We are most inter-ested in the case in which the chambers disagree in their assessmentof the state of the world. So consider the case in which (m", m2 ) =

(a,b). From Table 3, the priors for the conference committee are:r2 ab r3 =031ad72

ZAe(a*) =A =0.391 and lB.(ab) = 7r =0.609 Recall that qC3 _qc, and

qc. 1 - q. The likelihood matrix for the conference is:

Messages (m)

LC a b

A 0.7 0.3States (s)

B 0.3 0.7

Table 4

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The joint probability matrix for the conference committee is:

Messages (m)

IF a b

A 0.274 0.117States (s)

B 0.183 0.426

q- 0.457 0.543

Table 5

A potential posterior matrix:

Messages (m)

l c a b

A 0.60 0.215States (s)

B 0.40 0.785

Table 6

THE CONTRIBUTION OF A SECOND CHAMBER TO SELECTINGTHE BEST LEGISLATIVE MEANS

Now we use the above information to compute the marginal

value of legislating with two chambers relative to legislating withone chamber. When m2 = a, then the second chamber is not informa-tionally productive. If (mg,m 2 ) = (a,a), the bicameral legislaturewould adopt the same version of the bill as the unicameral legisla-ture. But if n2 = b, then the second chamber is informationally piv-

otal and the expected gain to a bicameral decision over the unicam-

eral decision is:

(APP. 7) P(0.609 - 0.391) - P(0.391 - 0.609) = (0.436)P.

From Table 3, the term P(0.609 - 0.391) in equation II.B.7 is the ex-

pected value of the legislature adopting policy B given that the prob-

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ability that the state of the world is actually B, 0.609 (and the prob-ability that the state of the world is A is 0.391). But the expectedvalue of a second chamber over unicameral decision-making also in-cludes the additional left-hand term because the second chamberprevents the wrong choice that the unicameral legislature would havemade given that it observed m = a. The value of correcting the mis-take of the unicameral legislature is the additional term of -P(O.391- 0.609) > 0.

Equation II.B.7, however, is the value of a second chamber giventhat the two chambers observed different signals regarding the truestate of the world. The expected value of a second chamber must bediscounted by the probability that the chambers actually observe dif-ferent signals. In order to compute the expected marginal value ofthe second chamber, then, two additional cases need to be considered:The case when a conference is called and the case when no confer-ence committee is called.

If no conference committee is held, then the expected value of the

second chamber message service is simply the expected payoff whenIn = b discounted by the probability that M = b is actually observed.

From equation II.B.7 and Table 2, the expected value of legislatingwith two chambers over legislating with one chamber is:

(APP. 8) (0.46)(0.436)P = 0.2P.

In this stylized example, the marginal improvement in the probabil-ity that the legislature will choose the appropriate means to achievea given end produces a net increase in the social value of the legisla-tion of 20 percent.

Now consider the case that a conference committee is called.There would be a gain to a second chamber only if the signal regard-ing the state of the world the conference observes is the same as thatobserved by the second chamber, m' = b. From Table 5, q = pr(mc =

b) = 0.543. From Table 6, the expected gain from adopting B giventhat m' = b is: P(0.785 - 0.215) - P(0.215 - 0.785) = (1.14)P.

The expected value of bicameralism is the expected gain fromadopting B given that (m", M 2

, M) = (a, b, b) discounted by the prob-ability that the second chamber and the conference actually observe

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"b." From Table 2, the pr(m2 = b) = 0.46, and from Table 5 pr(m' = b)

= 0.543. Thus, the expected value of bicameralism when a conference

is held is:

(APP. 9) (0.46)(0.543)(1.14)P = 0.285P.

In this stylized example, the marginal improvement in the probabil-

ity that the legislature will choose the appropriate means to achieve

a given end produces a net increase in the social value of the legisla-

tion of 28.5 percent.

Now consider the case in which the first/unicameral chamber is

actually better informed than the second chamber, q" = 0.7, q2 = 0.6, q'

= 0.7. The existence of a second chamber is still informationally pro-

ductive, although, sensibly, its value is less than when the second

chamber is more informed than the first/unicameral chamber. In

this case the second chamber is informationally pivotal only when a

conference is called and when both the second chamber and the con-

ference committee observe "b." In this stylized example, the mar-

ginal improvement in the probability that the legislature will choose

the appropriate means to achieve a given end produces a net increase

in the social value of the legislation of 8.4 percent.

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120 CREIGHTON LAW REVIEW [Vol. 33

Judicial Review Standards in Unicameral Legislative Systems

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