Download Judicial Review Standards in Unicameral Legislative Systems: A

JUDICIAL REVIEW STANDARDS IN
UNICAMERAL LEGISLATIVE SYSTEMS:
A POSITIVE THEORETIC AND
HISTORICAL ANALYSIS
JAMES R. ROGERSt
IN TRODU CTION ..........................................................................
PART I. THE HISTORY OF CAMERAL CHOICE IN THE U.S..
A. CAMERAL CHOICE AND STATE CONSTITUTIONAL
66
68
P OLITICS ........................................................................
68
B. THE HISTORICAL DISTINCTION BETWEEN "CLASSICAL"
AND "REPUBLICAN" BICAMERALISM ...............................
PART II. JUDICIAL REVIEW AS A SUBSTITUTE FOR A
SECOND CHAMBER: THE HISTORICAL EXPECTATION .......
PART III. CONSTITUTIONAL DEFICIENCIES OF
UNICAMERAL ENACTMENTS: TWO POSITIVE
THEORETIC MODELS ................................................................
A. UNICAMERAL PROCESS AND SELECTING LEGISLATIVE
B.
ENDS: THE FACTION MODEL ........................................
UNICAMERAL PROCESS AND SELECTING LEGISLATIVE
MEANS: THE INFORMATION MODEL ...............................
74
79
86
88
97
PART IV. APPROPRIATE JUDICIAL REVIEW STANDARDS
IN UNICAMERAL LEGISLATIVE SYSTEMS ............................
A.
STANDARDS FOR REVIEWING LEGISLATIVE MEANS ........
STANDARDS FOR REVIEWING LEGISLATIVE ENDS ..........
B.
PART V. ARE THERE OFFSETTING PROCESS
ADVANTAGES TO UNICAMERAL SYSTEMS? .........................
C O NC LU SIO N .............................................................................
APPENDIX: FORMAL DISCUSSION OF INFORMATIONAL
M ODEL AND RESULTS .............................................................
100
103
104
106
110
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 science), 1994. An earlier version of this paper was presented at the April, 1998 meeting
of the Midwest Political Science Association in Chicago, IL. Grant support is gratefully acknowledged from the Texas A&M University Scholarly Enhancement Program,
the Nebraska Center for Public Policy, and the American Politics Program of the
George Bush School of Government at Texas A&M University.
CREIGHTON LAW REVIEW
[Vol. 33
INTRODUCTION
Courts reviewing the constitutional reasonability' of ordinary
Nebraska statutes2 apply the same deferential review standards as
courts that review similar laws in other states.' This is inconsistent
with the implications of Nebraska's legislative exceptionalism - the
unicameral legislature.4 The impact of eliminating a second legislative chamber extends beyond the legislature itself and necessarily
affects the relationship between the legislature and coordinate
branches of government. Drawing on the historical expectations of
unicameral reformers and on modem positive political theory,5 this
article argues that eliminating a second legislative chamber implies
the compensatory need for heightened judicial review standards under constitutional reasonability requirements relative to the standards courts apply in bicameral systems. While this conclusion is
immediately pertinent to the choice of review standards in Nebraska,
it also has implications for the growing number of states actively
considering the unicameral reform,' as well for the 126 countries that
1. Courts review the "reasonability" of statutory means and ends under the
Equal Protection and Due Process clauses of the Fourteenth Amendment and related
Nebraska constitutional provisions. See infra notes 129-30 and accompanying text.
2. "Ordinary" state statutes are those that proceed neither along suspect lines
nor infringe fundamental constitutional rights. They traditionally receive very deferential 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 Nebraska
Constitution and the U.S. Constitution have identical requirements for equal protection challenges." Pick v. Nelson, 247 Neb. 487, 498, 528 N.W.2d 309, 318 (1995) (citations omitted). The equal protection provisions (or their equivalent) in many other
state constitutions have been held to be the same as the federal standard, although
there are some important exceptions. See Jason W. Hayes, Amendment One: The
NebraskaEqual ProtectionClause, 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 literature
on "positive political theory and law" is burgeoning. The Georgetown Law Journal
collected a number of articles in, Symposium, Positive Political Theory and Public
Law, 80 GEO. L.J. 457 (1992). A recent collection of "classic" articles can be found in
MAXWELL 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/ PresidentCivil Rights Game, 79 CAL. L. REV. 613 (1991); William N. Eskridge, Jr., Overriding Supreme Court Statutory InterpretationDecisions, 101 YALE L.J.
331 (1991); Daniel A. Farber & Philip P. Frickey, Foreword: Positive PoliticalTheory
in the Nineties, 80 GEO. L.J. 457 (1992); John Ferejohn & Barry Weingast, A Positive
Theory of Statutory Interpretation, 12 INT'L REV. L. & ECON. 263 (1992); Matthew
McCubbins et. al., Politics and Courts: A Positive Theory of Judicial Doctrine and the
Rule of Law, 68 S. CAL. L. REV. 1631 (1995); William Riker & Barry Weingast, Constitutional Regulation of Social Choice: The Political Consequences of JudicialDeference
to Legislatures, 74 VA. L. REV. 373 (1988).
6.
Fourteen states have officially considered proposals to eliminate one legisla-
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
currently have unicameral national legislatures.7
The discussion is organized as follows. Part I briefly surveys the
history of cameral choice in the United States and contrasts George
Norris's tendentious characterization of the origins of American bicameralism with the conclusions of modem historians. Part II revisits the now forgotten expectation of unicameral proponents that
heightened standards of judicial review would at least partially compensate for the elimination of the review accorded to legislation by
second chambers in bicameral systems. Part III then develops two
simple positive theoretic models that show that unicameral legislatures produce legislation that is more constitutionally suspect than
bicameral legislation along two dimensions: (1) Statutes enacted by
unicameral legislatures are more likely to pursue constitutionally
illegitimate purposes than are statutes enacted by bicameral legislatures; and (2) statutes enacted by unicameral legislatures are more
likely to employ "unreasonable" statutory means to pursue their ends
than are statutes enacted by bicameral legislatures.
Taken together, Parts II and III show that dispensing with the
check on legislation provided by second chambers means that other
branches of government have to assume the review tasks once performed by the eliminated chamber. Progressive-era unicameralists
argued that judicial oversight would be one important substitute in
unicameral systems for the check and balance provided by second
chambers in bicameral systems. The positive theoretic models then
identify the particular dimensions appropriate for heightened judicial
scrutiny. The models map directly onto the means/end inquiry applied by U.S. courts to review the reasonability of state statutes under federal and state equal protection and due process guarantees.
On both historical and process grounds, the analysis shows that in
order for Nebraska to obtain levels of statutory reasonability comparable to those obtained in bicameral systems, courts must provide a
higher level of scrutiny when reviewing its unicameral enactments
than 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 successful national cameral change since World War II. See generally TWO INTO ONE: THE
POLITICS AND PROCESS OF NATIONAL CAMERAL CHANGE (Lawrence D. Longley &
David M. Olson eds., 1991) [hereinafter TWO INTO ONE]. Of course, legal doctrines
developed in the specific context of the U.S. constitutional system need not be directly
applicable to the many alternative arrangements structuring the relationship between
legislatures and judiciaries in other countries. Nonetheless, the U.S. model of judicial
review has been influential world-wide, so the analysis developed here may be pertinent to national systems as well. See generally COMPARATIVE JUDICIAL REVIEW AND
PUBLIC POLICY (Donald W. Jackson & C.Neal Tate eds., 1992).
CREIGHTON LAW REVIEW
[Vol. 33
preliminary discussion of the level of heightened review that might
be warranted given the suspected constitutional infirmities of statutes enacted through a unicameral process. Finally, Part V discusses
whether there might be any process advantages to unicameralism
that would offset the need for heightened judicial review in unicameral legislative systems.
PART I.
THE HISTORY OF CAMERAL CHOICE IN THE U.S.
This section briefly surveys the history of cameral choice in the
United States from colonial times up to current proposals in state
legislatures. We then consider George Norris's bicameral historiography. Much of Norris's criticism of bicameral process stems from
his failure to recognize, as modern historians have, that the "republican" bicameralism of U.S. states - when both chambers share the
same electors - is fundamentally different from the "classical" or
"mixed government" bicameralism practiced in Britain, where chambers are allocated to different economic or political classes. Carefully
distinguishing between the different forms of bicameralism is important in order to characterize accurately the existence and significance
of unicameralism's constitutional weaknesses relative to bicameralism.
A.
CAMERAL CHOICE AND STATE CONSTITUTIONAL POLITICS
When Nebraska's unicameral legislature met for the first time
early in 1937, it had scarcely been 100 years since the meeting of the
last state unicameral legislature in Vermont. From the earliest days
of the American colonies up through today's headlines, legislative
cameral reform has been a regular, if periodic, component of state
constitutional debates. The earliest colonies typically legislated with
some form, however ambiguous, of unicameralism. These early governments had no strict separation of powers and, in a mixture of legislative and executive authority, colonial representatives assembled
together with the governor and his council. 8 These colonial representatives initially had no formal powers, but rather served only to provide advice and information to the executive. Throughout the late
17th and early 18th centuries, a form of bicameralism gradually developed as colonial representatives struggled for and won the right to
sit independently of the governor's council, the right to initiate laws
relating to the internal government of the colony,9 and the preroga8. 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 POLITICAL
AND CONSTITUTIONAL HISTORY 165 (1994).
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
tive to set internal taxes.10 Because the executive councils of that era
acted sometimes in an executive capacity and sometimes in a legislative capacity, it is not entirely clear whether they should be unambiguously identified as second legislative chambers.1" Nonetheless,
because these upper chambers exerted legislative authority and
evolved into legislative chambers upon independence from Britain,
commentators tend to identify most pre-Revolutionary colonial legislatures as bicameral in form.' 2
During the Revolutionary era, Georgia, Pennsylvania, and Vermont all adopted unicameral legislatures. More than any other state
of the era, Pennsylvania's debate over cameral choice reached a high
level of maturity and refinement, and its rejection of unicameralism
in its 1790 constitution set an influential example for other states. 3
Georgia adopted bicameralism in 1789, and Vermont, waiting another forty-five years, adopted a second legislative chamber in 1836.1'
All states subsequently joining the union (including Nebraska) entered with bicameral legislatures.
While unicameralism continued to be of interest to political philosophers during the nineteenth century, 5 it was not until the Progressive era in the United States that cameral choice once again received sustained attention at the level of ordinary state constitutional politics.1 " A flurry of proposals then burst onto the national
scene. As early as 1912, Oregon voters considered and rejected, by
an electoral margin of better than two to one, a constitutional
amendment proposing a 60-member unicameral legislature for the
10. See generally COLONIES TO NATION 1763-1789: A DOCUMENTARY HISTORY OF
THE AMERICAN REVOLUTION (Jack P. Greene ed., 1975); cf. GREENE, supra note 9.
11. This issue arose with a vengeance in the pre-Revolutionary Wilkes Fund
controversy in South Carolina. The colony's house of commons argued the "inconsistency and absurdity" of the South Carolina council acting both as an upper legislative
chamber 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 1776-1787
227-37 (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 1944(1938).
15. Anticipating the American Progressives' interest in "rational government,"
British utilitarian and reform scholars, such as Jeremy Bentham, championed unicameralism throughout the mid-1800s. See, e.g., Lewis Rockow, Bentham on the Theory 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, the
issue of cameral choice in constitutional systems was often linked with other constitutional proposals.
CREIGHTONLAW REVIEW
[Vol. 33
state. 7 The next year, the California senate considered and rejected
a proposal to create a single, forty member legislative chamber. In
1915, the Alabama legislature considered a constitutional amendment to create a unicameral legislature, but that, too, failed to obtain
the requisite support in the legislature."5 In the same year, Governor
George W. Hunt of Arizona advocated the adoption of a unicameral
legislature for his state. The next year Arizona voters nonetheless
rejected a unicameral initiative proposal by a margin of almost two to
one. 9 At least twelve other states considered unicameralism prior to
1920 in some official capacity.2 ° All totaled, over one-third of the
states had accorded official consideration to unicameralism prior to
1920. Nonetheless, all proposals for reform were defeated. In perhaps the closest loss of the period, Oklahoma voters, who voted on a
1914 unicameral initiative, supported the measure with over fiftyeight percent of the vote (99,686 in favor and 71,742 opposed). The
amendment did not win approval, however, because of the Oklahoma
requirement that measures garner a majority of all votes cast. Over
75,000 Oklahoma voters who cast ballots in that election abstained
from indicating a preference on the unicameral initiative. Consequently, the measure needed almost 25,000 additional votes for success. During the 1920s, unicameral proposals continued to be considered throughout the states, albeit at different levels of seriousness. None succeeded.
Nebraska considered, and rejected, proposals for unicameral reform at least six times prior to its success in 1934. A joint legislative
committee first proposed the consideration of unicameralism for Nebraska in 1913.21 A majority of the legislature voted in 1915 to hold a
referendum on a constitutional amendment to adopt a one-chamber
legislature, but it failed to receive the requisite supermajority required to submit the amendment to Nebraska's electorate. A similar
proposal 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 by
123,429 to 62,376.
18. SENNING (1937), supranote 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 repeatedly considered in many states. California, for example, considered unicameral
proposals 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 Legislature, 29 AM. POL. SCI. REV. 69 (1935) (hereinafter Senning (1935)], and JOHNSON, supra note 14, at 95.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
from even a majority of legislators. At Nebraska's 1919-1920 constitutional convention, a unicameral proposal evenly split the convention's delegates in a tie vote. The measure subsequently failed when
the convention's president broke the tie by voting against the reform." After 1920, proposals for unicameralism still abounded in
Nebraska, but legislative and public interest had cooled. A 1923 initiative failed to receive enough signatures to be placed on the ballot,
and legislative proposals in 1923, 1925, and 1933 received little serious attention.
There is little indication the reform would have fared any better
in 1934 had it not been for the personal intervention of Nebraska's
influential U.S. senator, George Norris. Norris was perhaps the
leading unicameralist of his day, advocating the reform at least since
23
1923 when he published an editorial piece in the New York Times
sketching the design of a "model state legislature" that included,
among other recommendations, the one-chamber legislature. Apparently wearied of the diminishing prospects for unicameral reform in
his own home state, on February 22, 1934, Norris announced his ininitiative to be
tention to put his own efforts behind a unicameral
24
placed for consideration on the November ballot.
The consensus of opinion holds that Norris's personal involvement in the campaign was critical to its success in Nebraska. Lester
Orfield, a University of Nebraska law professor, writing for the
Michigan Law Review in 1935 concluded: "In 1934 Senator Norris
took charge of the movement to bring about a unicameral legislature.
He was assisted by local persons of prominence, but to him almost
alone must go the credit for the adoption of the plan."25 University of
Nebraska political scientist John P. Senning noted that, unlike the
failed attempts at reform earlier in Nebraska, "[w]hat gave significance to the [1934] movement was the fact that Senator Norris sponsored it."26 A state newspaper similarly observed: "If the proposal
had 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 announcing the campaign for unicameralism and the other legislative reforms were
printed in the CongressionalRecord a few days later on February 27. George W. Norris, The Model Legislature, Address delivered at Lincoln, Nebraska (Feb. 22, 1934),
printed in 80 CONG. REc. 3276, 3277 (1934) [hereinafter Norris (1934)]; cf George
Norris, Nebraska's One-House Legislative System, 81 CONG. REC. 1635 (1935) [hereinafter Norris (1935)].
25. Lester B. Orfield, The UnicameralLegislature in Nebraska, 34 MICH. L. REV.
26, 27 (1935).
26. Senning (1935), 29 AM. POL. SCI. REV. at 69.
CREIGHTON LAW REVIEW
[Vol. 33
received almost no consideration at all." 7 Alvin W. Johnson observed: "Senator George W. Norris had long been the moving spirit
in the agitation for a unicameral legislature, and he gave all his efforts to the cause in the spring and summer of 1934. "2
The Inde-
pendent Woman asserted that Norris "put through the Nebraska
legislative reform," and that when he began "nearly everyone in the
State seemed to be against him.'
At the very least, according to
Senning, "the [Nebraska] press was unanimously opposed to the
amendment" (although he then cites several exceptions).3 °
Norris chose to place the reform proposal before Nebraska voters
by a citizen initiative. While the 1923 initiative failed to secure
enough signatures to be placed on the ballot, the 1934 initiative petition received 95,000 signatures, almost 40,000 more than the number
required.3 1 The results of the November, 1934 election saw the
measure adopted with just less than sixty percent of the vote.3 2 The
first unicameral legislature in Nebraska subsequently met in 1937." 3
Prior to Nebraska's adoption of the unicameral reform, interest
had decreased considerably in other states from its peak in the late
1910s and the early 1920s. Only a handful of states considered constitutional amendments for unicameralism in each of the 1931 and
1933 legislative cycles. 3 4 The adoption of unicameralism in Nebraska, however, sparked a new round of reform activity. In 1935
alone, some twelve states considered legislation proposing unicameralism. In 1937, twenty-one of the forty-three legislatures holding
sessions
considered at least one proposal to implement unicameral35
ism.
None was successful.
After the spike of interest stimulated by Nebraska's action, agitation for unicameralism again quieted, but did not completely disappear from the states' political landscape. Alaska saw a vocal proponent of unicameralism at its constitutional convention prior to
statehood in the late 1950s, Florida courts ruled a unicameral initia27. 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 Nebraska
vote. 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 Nebraska 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.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
tive attempt ineligible for the 1970 ballot,36 and North Dakota voters
7
defeated a unicameral proposal by a two to one margin in 1972."
Reports indicate that three states considered the reform at least informally in the 1970s and three more states did so in the 1980s.3"
The 1990s, however, have witnessed a dramatic increase in official
attention to unicameralism with fourteen states considering the reform since 1993, some of them multiple times. At least four unicameral proposals were introduced in the 1999 session of the Minnesota
legislature (with twenty-seven measures proposing unicameralism
being introduced since 1994).3' Additionally, the state's new governor and new House speaker are both vocal proponents of unicameralism for Minnesota, with the state's leading newspaper editorializing that the elimination of one legislative chamber "may be coming. "4 The 1999 legislative sessions of Hawaii41 and New York42 also
saw renewed introduction of unicameral proposals. In 1997 legislative sessions, state legislators sponsored unicameral proposals in
47
Alaska,43 Connecticut, 44 Iowa,45 South Dakota,46 and Wisconsin.
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 level
during the 1970s, and Florida, Minnesota, and Mississippi showed some interest during the 1980s. Rick Atkinson, Nebraska Still Alone on 1-House System, OMAHA WORLD
HERALD, Apr. 10, 1990, at 7.
39. S.F. 30, 81st Leg. (Minn. 1999); S.F. 43, 81st Leg. (Minn. 1999); S.F. 44, 81st
Leg. (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, 80th
Leg. (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, 79th
Leg. (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 introduced in Wisconsin's 1995 legislative session. A.J.R. 56, 92d Reg. Sess. (Wis. 1995).
CREIGHTONLAW REVIEW
[Vol. 33
Florida's constitutional revision commission narrowly defeated a
1997 measure to eliminate one legislative chamber." During 1995
sessions, legislators introduced measures proposing unicameralism
in Maine,49 Massachusetts, ° Pennsylvania, 1 and Vermont, 2 and
legislation proposing the reform was introduced in the California
legislature in 1993."3 California's Constitution Revision Commission
initially adopted a unicameral recommendation in 1995," 4 but failed
to send it to the legislature after several commissioners changed
their votes.55
Debates over cameral choice are an enduring feature of state
constitutional politics. Nonetheless, a great deal of misunderstanding exists regarding the character of U.S. bicameralism and the fundamental institutional differences distinguishing U.S. bicameralism
from the "classical" form of bicameralism as represented most notably in the British Parliament. Indeed, the picture that George Norris
drew of the historical origins of bicameralism in the United States
stands in stark contrast to that drawn by modern historical research.
Because bicameral outcomes set the constitutional standard against
which unicameral outcomes are compared (and vice-versa), it is necessary to identify and comment on the inaccuracies in Norris's tendentious 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 historical
claims. First, that congressional bicameralism was copied from the
example of the British Parliament."v Second, that state bicameralism
48. Proposal No. 177, CRC 13-130-pr, Fla. Const. Rev. Comm'n. (1997-98). The
proposal was defeated on a 19-14 vote, Charles Elmore, Jennings Backs House-Senate
Merger, PALM BEACH POST, Dec. 12, 1997, at 14A.
49. S.B. 658, 117th Leg., 2d Reg. Sess. (Me. 1995). The proposal was defeated in
the House on two votes of 66-32 and 100-45, Jay Higgins, Unicameral Legislature
Turned 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 "[inthe main it was intended that the House
of Representatives, like the House of Commons, should represent the people and that
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
was copied from the congressional example." If true, the two claims
would imply the inappropriateness of bicameralism for state legislatures. After all, first, the social and economic bases for British bicameralism do not exist in the United States: The British justification for bicameralism rests upon the classical theory of "mixed government" in which nobles are allocated one parliamentary chamber
and commoners are allocated the other. Because the political interests of the social estates diverge, each needs the protection of a legislative veto against measures that would advance one estate's interests at the expense of the other. In extolling the British example,
Montesquieu thus wrote that nobles must "form a body that has a
right to check the licentiousness of the people," but that the people
must also have their own chamber to "oppose any encroachment" by
the aristocracy.59 But, with no aristocratic class in the United States,
the Senate should be elected from the wealthy, aristocratic class, to represent the aristocracy." 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, and
thus the checks and balances were completed with the idea that the rights of
property should always be safeguarded and protected, and the people themselves should not have a direct voice, either in the selection of Members of the
Senate, 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 Lords
was created to protect the rich aristocracy from the commoners in the House
of Commons. Likewise, the American federal system, based on the English
version, was constructed as a check and balance. The Senate originally was
elected by the state legislatures to represent the states or property....
Norris had no reverence for the time-entrenched system that originally
was premised on a caste system.
Kim Robak, The Nebraska Unicameral and Its Lasting Benefits, 76 NEB. L. REV. 79596 (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, is
problematic. Madison rather suggests that bicameralism is a means of deterring a
particular 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 faction
would implement its preferred policies. This is not a result of the Senate existing to
represent "aristocratic" elements, but because it is more difficult for a factious leader
in either chamber to extend his or her influence to the other chamber. THE
FEDERALIST NO. 62, at 379 (James Madison) (Clinton Rossiter ed., 1961).
58. Norris stated that "[in setting up new State institutions under the Federal
Government, our forefathers followed the precedents established by the Federal Government 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 federal
model...." Roback, 76 NEB. L. REV. at 796.
59. 1 BARON DE CHARLES-LOUIS DE SECONDAT MONTESQUIEU, THE SPIRIT OF THE
LAWS 155 (1900).
CREIGHTON LAW REVIEW
[Vol. 33
there is no reason to have a second legislative chamber as Britain
has. As for the second claim regarding state emulation of congressional bicameralism, the argument is that the example is not relevant to states because congressional bicameralism was adopted solely
as a practical compromise between large and small states. It was
thus the product of political expedience rather than political principle, and consequently the example suggests no intrinsic merit that
would commend state-level emulation.6 °
While the conclusions of each argument follow logically from the
premises, the historical premises of both arguments are, in fact,
false. First, consider the claim that the new Americans simply borrowed bicameralism directly from the example of the British Parliament. It should be initially recalled that British institutions did not
have the highest standing in the minds of the newly independent
Americans. The United States had just clashed with Britain in a war
motivated by Parliament's attempt to enforce its claim of legislative
supremacy over the colonies.6 As a result, as Joseph Story pointed
out 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 parliament."" American governments thus adopted bicameralism in
spite of the British example rather than because of the example. Further the claim that U.S. bicameralism is modeled on British bicameralism ignores the fundamental organizational differences distinguishing the two types of bicameralism. Political leaders in the new
states were thoroughly republicanized. As discussed further below,
modern historians have extensively documented that Revolutionaryera Americans largely rejected the application to the United States of
the British "mix government" theory that would reserve one bicameral chamber for an aristocratic or propertied class." For example,
60. The United States Supreme Court expressed the view that federal bicameralism was a product of unique circumstances and, consequently, did not provide a
precedent for state emulation in Reynolds v. Sims, 377 U.S. 533, 574 (1964). The Supreme Court noted that:
The system of representation in the two Houses of the Federal Congress... is one conceived out of compromise and concession indispensable to
the establishment of our federal republic. Arising from unique historical circumstances, it is based on the consideration that in establishing our type of
federalism a group of formerly independent States bound themselves together
under 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) (emphasis added).
63. WOOD, supra note 13, at 197-255; see generally MARC W. KRUMAN, BETWEEN
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
historian Marc Kruman concludes his study of Revolutionary-era bicameralism by observing that "Americans of the founding era rejected
the 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 republican institution, not one established to represent a narrow class of
citizens or interests."
Second, regarding the argument that states unthinkingly followed the national example of a bicameral congress in creating bicameral state legislatures: This claim initially overlooks the fact
that congressional bicameralism cannot be the origin of state-level
bicameralism for the simple reason that the original, bicameral state
constitutions were written before the bicameral national Constitution
of 1787 was even drafted. As discussed above, while Pennsylvania,
Georgia and Vermont adopted unicameral legislatures during the
Revolutionary era, all the other states adopted bicameral legislatures
after separating from Britain in 1776. Indeed, the arguments at the
federal Constitutional convention regarding national-level bicameralism were often based on an appeal to the prior bicameral experience of the states.66 It should also be recalled that prior to 1787, unAUTHORITY 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 the
American states, because they had not existed long enough for an aristocracy to have
arisen. Thus, as a practical matter, republicanism was the only model applicable to
the U.S. state governments. Id. at 145. Indeed, "eight of the twelve constitutionwriting states rejected the idea of singling out 'the senatorial part' of society for an
upper house." Id. at 137 (emphasis added). Further, Revolutionary state constitutions
did not generally substitute property owners for aristocrats in determining who would
elect legislative upper chambers. Id. at 138.
65. In The FederalistNo. 39, Madison wrote:
[W]e may define a republic to be... a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or
during good behavior. It is essential to such a government that it be derived
from the great body of the society, not from an inconsiderable proportion or a
favored class of it; otherwise a handful of tyrannical nobles, exercising their
oppressions by a delegation of their powers, might aspire to the rank of republicans 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 legislatures 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 (stating
that '[a]ll Bills for raising Revenue shall originate in the House of Representatives .... .")), appealed from the experience of the states with the bicameral sequencing
requirement in arguing about its probable effect at the national level. See JAMES
WILSON, LEGISLATIVE DEPARTMENT, LECTURES ON LAW (1791), in 2 THE FOUNDERS'
CONSTITUTION 385, 385 (Phillip Kurland & Ralph Lerner eds., 1987).
CREIGHTONLAW REVIEW
[Vol. 33
der the Articles of Confederation, the national congress was a unicameral body.67 Thus, the states originally adopted bicameralism in
spite of a national unicameral model. The early U.S. states adopted
bicameralism not out of deference to an empire they had just rejected, and certainly not out of deference to a national example that
did not yet exist, but largely out of their experience with legislative
and executive authority prior to and during the Revolutionary period. 8
Further, it is important to recognize the organizational differences between British or "classical" bicameralism and American or
"republican" bicameralism. Modern historical studies of the American 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 British
colonists naturally brought the theory of mixed government with
them to America.7 ° But upon separation from Great Britain, states
lacked an indigenous landed aristocracy and, hence, lacked the social
prerequisite for mixed government. Thus, as much out of social necessity as of desire, new state legislatures had to be republican in
character.71 Historians have extensively documented that this republican turn in American political commitments underlay an extended reconsideration of the purpose of bicameralism during the
fervid period of state constitution-making between 1776 and 1790.
The debate circled around this issue: Since an aristocratic social estate did not exist in U.S. states as it did in Great Britain, why continue to have second chambers if they simply represented the same
electors and thus reflected the same institutional preferences as
those reflected by the first chamber?72 The debate over cameral
67.
68.
ARTICLES OF CONFEDERATION, art. V.
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 balance of the elements of monarchy, aristocracy, and democracy. This balance was reflected in the legislature with a division, as in the British Parliament, between the
House of Commons and the House of Lords. Lawrence D. Longley and David M. Olson
observe that the "classic justification for legislative bicameralism is that institutional
dualism is necessary in order to reflect class or other deep cleavages evident in the society 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 of
mixed government had limited application to the new United States, simply because
the country had not existed long enough to develop an aristocracy. KRUMAN, supra
note 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.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
choice during this era was explicit and self-conscious. Summarizing
the state-level debates during this era, historian Gordon Wood writes
that, because state constitution-makers insisted on republicanizing
both legislative chambers, the "homogeneity of [social] orders" in the
United States resulted in "two homogenous branches" in state bicameral legislatures.7" Wood concludes, "[t]he people in the new states
seemed to be electing the same kinds of persons to both houses of the
legislatures, thus creating a homogeneity of interest between the two
branches and destroying the purpose for instituting a mixed polity."74
U.S. bicameralism was fundamentally distinct from British "mixed
government" bicameralism.
George Norris attacked a form of bicameralism that simply had
not existed in U.S. states. Indeed, his main argument regarding the
anti-democratic implications of bicameralism responds to the British,
mixed government form of bicameralism, not to the republican bicameralism practiced in the United States75
After the founding era, active consideration of issues of cameral
choice cooled until the Progressive era. Unicameral proponents then
nested their discussion of cameral reform in a broad consideration of
how the reform would affect traditional relationships among coordinate branches of government implied by the separation of powers
doctrine. Most suggestively for this study, this included a reconsideration of the role of judicial review in unicameral constitutional systems. We now turn to consider their argument.
PART II. JUDICIAL REVIEW AS A SUBSTITUTE FOR A
SECOND CHAMBER: THE HISTORICAL EXPECTATION
This Part revisits the now almost forgotten argument of unicameral proponents regarding the role of judicial review in unicameral
constitutional systems. It establishes the historical expectation that
judicial review would at least partially substitute in unicameral systems for the review otherwise accorded to legislation by the eliminated second chamber. The next Part draws on positive political theory to identify more specifically the constitutional weaknesses of unicameral legislative processes relative to bicameral processes, and to
link those weaknesses precisely to the means/ends inquiry U.S.
courts apply when reviewing the reasonability of state legislation
under the Fourteenth Amendment.
During the Progressive-era debates on unicameralism, oppo73.
74
75.
WOOD, supranote 13, at 237; cf. id. at 214-44.
Id. at 216; cf KRUMAN, supra note 63, at 145.
See infra Part V.
CREIGHTON LAW REVIEW
[Vol. 33
nents of the reform argued that eliminating second chambers would
remove a crucial legislative check in state constitutional systems. In
response, unicameral proponents argued that the other branches of
government could take up whatever slack in legislative oversight
might be created by the elimination of second chambers. They argued that expanded judicial review of unicameral enactments could
substitute for the review provided by second chambers in bicameral
systems. On this point unicameral proponents were explicit. Norris
wrote: "This same Uudicial] check [as exists over trial errors] would
exist in legislative matters if we had the one-house legislature. If the
legislature exceeded its constitutional authority in the enactment of
6
any law, it would be set aside by the supreme court."' Unicameral
proponents frequently appealed to the protection that judicial review
would afford in a unicameral system.7 7
Indeed, Progressive era unicameralists accused their critics of
ignoring that heightened judicial scrutiny, which was based on the
then-broadly applicable doctrine of substantive due process," would
vitiate the need for the added review of second legislative chambers.
Barnett, for example, argued in 1915 that second legislative chambers were not necessary to check the actions of first chambers given
the rigorous judicial scrutiny courts ordinarily applied when reviewing legislative enactments:
[Checks and balance] arguments [for bicameralism] imply
the absence of effective constitutional restrictions upon legislative action, but are continually repeated in discussions
concerning constitutions whose restrictions are enforced
against the legislature by the court, as in the case of Congress and the state legislatures today. Even American writ76. Norris, 181 ANNALS AM. ACAD. POL. & SOC. SCI. at 52. Norris, and other
proponents, also pointed to the veto power and citizen referenda as mechanisms that
place a check on poor legislation.
77. Lester Orfield, a law professor, argued: "[A] unicameral legislature does not
necessarily entail the loss of proper caution in the passing of laws .... The supreme
court may throw out unconstitutional laws." Orfield, 34 MICH. L. REV. at 33. Orfield
also argued that "it is by no means clear that unicameral legislatures will deal unfairly
with 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 federal
courts for nullification of unconstitutional laws" is a "more effective deterrent[ ] to
unwise and unjust legislation" than a second chamber and "would still be available to
restrain 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 Fourteenth
Amendment's due process clause to strike down hundreds of state statutes seeking to
regulate social and economic activity. See, e.g., Robert McCloskey, Economic Due Process 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).
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
ers generally seem to be entirely oblivious of the existence of
constitutional limitations in this connection.
... "A history of state legislatures would be largely concerned with the successive development of various methods
of curtailing the almost absolute power which these bodies
originally possessed... This general movement has manifested itself in the transfer of legislative power from the legislatures to the courts, to the people, and to the governor."
The federal constitution in its original form placed various
restrictions upon the legislatures of the States, and amendments, particularly the fourteenth amendment, have added
to these restrictions. The restrictions have marvelously
grown at the hands of the courts....
.. "The courts, meantime, in many places, enter into the
harvest thus provided for them with a light heart, and too
promptly and easily proceed to set aside legislative acts...
There has developed a vast and growing increase of judicial
interference with legislation."79
Barnett's references to the "fourteenth amendment," to the fact that
courts "too ... easily ... set aside legislative acts," and his claim that
the U.S. had seen a "transfer of legislative power from the legislatures to the courts," are clear references to the expansion of judicial
prerogative under the old substantive due process doctrine. But the
complaining note of some of Barnett's quotations belies the point that
he was making regarding heightened judicial scrutiny under the doctrine: It is precisely because courts were exercising a heightened review prerogative that Barnett concluded the checks and balances
provided by second chambers were no longer necessary.8 0 Progres79. Barnett, 9 AM. POL. Sci. REV. at 455-57 (citations omitted).
80. Senning makes a similar argument based on the transfer of legislative prerogative to the courts during the era of substantive due process:
The conditions which contributed to the imposition of constitutional restrictions upon the scope of legislative authority and the corresponding expansion
of the power of the electorate and the executive also strengthened the powers
and functions of the state judiciary in relation to and at the expense of the
legislature by means of the doctrine ofjudicial review. In construing constitutions which, through successive decades, grew in length and great detail, the
courts applied to some of the enumerated powers the doctrine of express limitations and to others the doctrine of implied limitations. Within these doctrines are hidden great possibilities of litigation at the instance of interested
parties by subjecting statutes to judicial scrutiny and possible judicial veto.
As the right, claimed by the legislatures, of their own interpretation of the
constitution narrowed, that of the courts expanded ....
As judicial review became a rationalization of the sovereign will as expressed in the states' fundamental law, the people placed chief reliance upon the courts for protection
against infringement of their rights by the legislature.
SENNING (1937), supra note 14, at 15-16, 83.
CREIGHTONLAW REVIEW
[Vol. 33
sive legislation often bore the brunt of judicial activism during this
era. sl Nonetheless, unicameral proponents assumed that the high
level of scrutiny applied by courts to review state legislation would
continue. The assumption that the judiciary would continue its rigorous scrutiny of legislation played a pivotal role in the Progressive
reconceptualization of checks and balances in unicameral constitutionalism. a2 The popular movement for unicameralism started
around 1913 and extended through the late 1930s. The rise and fall
of the doctrine of substantive due process is chronologically identified
by a series of notable United States Supreme Court decisions that
extended from around 1897 through 1937.8 Notably, the unicameral
movement arose during the same period that saw the rise of an activist judiciary under the doctrine of substantive due process.
Questions remain regarding the exact contours of substantive
4
due process and precisely what triggered its application. Nonetheless, several aspects of the doctrine are clear, and these implications
are what unicameral proponents had in mind when discussing
heightened judicial review in unicameral systems. Under the Fourteenth Amendment requirement that states not deny liberty without
due process of law, the Court held state laws unconstitutional, unless
they could be demonstrated to be "reasonable" impositions on lib81. See, e.g., McCloskey, SUP. CT. REV. at 34-35; GUNTHER & SULLIVAN, supra
note 78, at 465-74.
82. The connection between second chambers and judicial review is subtly suggested in other contexts as well. Walsh quotes an adage that second legislative chambers 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 MIXED
GOVERNMENT AND THE BICAMERAL SYSTEM 334 (1915). Justice Stone somewhere
picked 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) (emphasis
added).
83. There were antecedent cases, but the full-fledged emergence of economic due
process (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 economic 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 adopted
in the 1934 election, long before the demise of substantive due process was widely
anticipated.
84. See supra note 79 and accompanying text. See generally HOWARD GILLMAN,
THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE
POWERS JURISPRUDENCE (1993).
19991
UNICAMERAL LEGISLATIVE SYSTEMS
erty. 5 The Court during this era adapted a particularly rigorous
form of Madison's means-ends criteria of good government as judi-
cially enforceable criteria implied by the Fourteenth Amendment liberty guarantee. 6 As the Court held in its classic substantive due
process decision of Lochner v. New York:
The mere assertion that the subject relates, though but in a
remote degree, to the pubic health, does not necessarily render the enactment valid. The act must have a more direct
relation, as a means to an end, and the end itself must be
appropriate and legitimate, before an act can be held to be
[constitutionally] valid . . ."
The Court then independently inquired into the empirical basis for
the legislation: Whether the need for the legislation really existed
and to what extent the law would contribute substantially to achieve
that end.88 Critically, the Court did not defer to legislative factfinding; it did not grant the empirical benefit of doubt to the legislature regarding the need for the law or the relationship between that
need and the statutory means adopted by the legislature to address
that need.
In the now classic dissents to the Court's application of substantive due process in Lochner, the dissenting justices objected either to
the inquiry by courts into the empirical need for legislation or into
whether the appropriateness of the means implemented by the statute constituted a judicial usurpation of legislative prerogative. It
would become a refrain repeated for the next thirty years. Justice
Harlan, for example, wrote in dissent:
85. The United States Supreme Court stated:
In every case that comes before this court... where legislation of this character is concerned and where the protection of the Federal Constitution is
sought, the question necessarily arises: Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his
personal 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 implies
two things: first, fidelity to the object of government, which is the happiness of the
people; 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 Lochner
court adopted the "means-end" language directly from Madison. But the vocabulary
had judicial application far in advance of 1905. See, e.g., Marshall's language in
McCulloch v. Maryland: "Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are plainly adapted to that
end, 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.
CREIGHTON LAW REVIEW
[Vol. 33
If there be doubt as to the validity of the statute, that doubt
must therefore be resolved in favor of its validity, and the
courts must keep their hands off, leaving the legislature to
meet the responsibility for unwise legislation. If the end
which the legislature seeks to accomplish be one to which its
power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere. In
other words, when the validity of a statute is questioned, the
burden of proof, so to speak, is upon those who assert it to be
unconstitutional.
...
[F]or the state is not amenable to the judiciary, in re-
spect of its legislative enactments, unless such enactments
are plainly, palpably, beyond all question, inconsistent with
the Constitution of the United States. We are not to presume that the State of New York has acted in bad faith. Nor
can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the
fullest attainableinformation,and for the common good. 9
Harlan argued that judicial deference was warranted because
there was no basis for assuming the state legislature's informational
processes were insufficient, or that the legislature acted for factious
purposes rather than for the "common good." (We will see in the next
Part that the same cannot be said of unicameral enactments.)
Unicameral proponents lived in the Lochner world in which an
activist judiciary reviewed the empirical basis for the ends and
means of legislation. While the proponents objected to the specific
results which they believed wrongly struck down Progressive legislation, the existence of an active judiciary played a critical role in the
system of checks and balances they outlined in unicameral constitutional systems. Progressive era proponents of unicameralism argued
that heightened judicial review standards applied by the courts of
that era made the oversight accorded by second chambers no longer
necessary. In unicameral systems, the judiciary was expected to take
up the constitutional slack created by the absence of a second chamber. 9°
89. Id. at 68-69, 72-73 (Harlan, J., dissenting) (emphasis added) (citations omitted).
90. Madison rejected facile invocation of the "separation of powers" as if there
were no appropriate overlap between the branches of government. Indeed, Madison
argued that a system of checks and balances is only possible with some overlap in the
jurisdictions of the branches: "I shall undertake ... to show that unless [the legislative, executive and judicial] departments be so far connected and blended as to give to
each a constitutional control over the others, the degree of separation which the
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
A more deferential approach to legislative enactments may make
sense in a bicameral context. But an argument for presumptive deference to legislative outcomes in bicameral systems does not translate into an argument for presumptive deference in unicameral systems.91 To be sure, the era of substantive due process is widely conmaxim requires, as essential to a free government, can never in practice be duly maintained." THE FEDERALIST No. 48, at 308 (James Madison) (Clinton Rossiter ed., 1961).
The Constitution does not contemplate an absolute separation of power between the
branches. 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 is
granted 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 executive
power 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 a
part 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 independence of the judges maybe an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no'farther than to
the injury of the private rights of particular classes of citizens, by unjust and
partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.
It not only serves to moderate the immediate mischiefs of those which may
have been passed but it operates as a check upon the legislative body in
passing them ....
THE FEDERALIST NO. 78, at 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Of
course, 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 "malconduct," THE FEDERALIST No. 79, at 474 (Alexander Hamilton) (Clinton Rossiter ed.,
1961), and for 'deliberate usurpations on the authority of the legislature." THE
FEDERALIST No. 81, at 485 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
To be sure, the Nebraska Constitution provides that no branch "shall exercise
any power properly belonging to either of the others, except as hereinafter expressly
directed or permitted." NEB. CONST. art II., § 1 (emphasis added). But, unlike the
U.S. Constitution, the Nebraska Constitution also expressly provides for judicial review of legislative acts. See NEB. CONST. art. V, § 2.
91. Nebraska state courts nonetheless followed the U.S. Supreme Court in applying a deferential standard in reviewing statutory reasonability under both the state
and federal constitutions' due process and equal protection guarantees. The Nebraska
Supreme Court echoes Harlan's dissent in Lochner in concluding that courts should be
deferential toward legislative decision-making. See, e.g., Distinctive Printing & Packaging 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 legislature cannot delegate legislative authority to Nebraska courts. The other two cases
cited as authority in Distinctive Printing,- Arant v. G.H., Inc. and Else v. Else - simply reject the proposition that Nebraska courts can pass on general matters of public
policy as if they were legislators themselves. Nonetheless, there is an important proviso, as recognized in Else v. Else: "With respect to questions about a statute, our role
is limited to interpretation and application of statutes, irrespective of our personal
agreement or disagreement with a particular legislative enactment, so long as a questioned 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 reasonability litigation under the due process and equal protection provisions, specific constitutional requirements are cited. It thus begs the question to cite cases relating to the
CREIGHTON LAW REVIEW
[Vol. 33
sidered to be an era in which the judiciary usurped the proper prerogative of state legislatures. This analysis does not challenge that
conclusion. But what must be recalled is that the doctrinal movement away from rigorous substantive due process oversight and toward more deferential judicial review was spearheaded by courts
working within systems of bicameral constitutionalism. Eliminating
second legislative chambers, however, removes one of the constitutional checks and balances that is assumed in arguments for presumptive judicial deference to legislative outcomes. Consequently,
courts overseeing unicameral legislatures must develop a constitutional jurisprudence appropriate to the critical structural difference
that exists between unicameral constitutional systems and the systems of bicameral states.
Developing a constitutional jurisprudence appropriate to the distinctive qualities of a unicameral legislative system is taken up in
the next two Parts. Part III accounts more precisely why statutory
ends and means are more constitutionally suspect when enacted by a
unicameral legislature than when enacted by a bicameral legislature.
Part IV then considers the level of heightened judicial scrutiny which
would be appropriate to the constitutional weaknesses of unicameral
legislation.
PART III. CONSTITUTIONAL DEFICIENCIES OF
UNICAMERAL ENACTMENTS: TWO POSITIVE THEORETIC
MODELS
This Part develops two positive theoretic models to compare unicameral and bicameral enactments. Model [1] suggests that unicamseparation of powers and conclude that heightened inquiry under those two provisions
would constitute interference with legislative prerogative. Rather, the question is,
given judicial review under either constitutional requirement, what is the appropriate
level of scrutiny for courts to apply? The argument here is that the Nebraska Constitution, by choice, developed a structure and relation unique to itself. Consequently, its
constitutional jurisprudence must develop uniquely as well. Reasonability review
under due process or equal protection guarantees is already conceded. The argument
here is that courts in a unicameral system should apply a more rigorous level of review. 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 of
stricter scrutiny ever justified, but even minimal scrutiny would unconstitutionally
violate the separation of powers and represent judicial usurpation of legislative prerogative. Yet the Nebraska Supreme Court has set aside legislative enactments even
under 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 there
is no rational basis for the classification made by the statues.. . ."). Courts apply
intermediate 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 for
a Newer Equal Protection, 86 HARv. L. REv. 1, 20 (1972)) all without ostensibly impinging on legislative prerogative.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
eral legislatures are more likely to pursue illegitimate governmental
purposes relative to bicameral legislatures, and model [2] suggests
that unicameral legislatures are more likely than bicameral legislatures to adopt inappropriatestatutory means relative to the purposes
they seek to achieve. The models link the heightened suspicion of
constitutionally undesirable legislative means and ends in Nebraska
statutes to the deficiencies of unicameral legislative processes. The
classic "process" rationale for heightened judicial scrutiny is thus
92
triggered by the use of a unicameral process in enacting legislation.
Exactly what level of judicial scrutiny might be justified in response
to the constitutional weaknesses of unicameral enactments is discussed in the subsequent Part.
Lawyers are accustomed to courts applying a two-pronged
means/ends approach when reviewing the constitutional reasonability of statutes. Often overlooked, however, is that the Constitution's
framers themselves had earlier articulated their constitutional goals
using this framework. For example, writing with regard to federallevel bicameralism, Madison observed in The FederalistNo. 62 that
"[a] good government implies two things: First, fidelity to the object
of government, which is the happiness of the people; secondly, a
3
knowledge of the means by which that object can be best attained."
Madison's criteria for good government stipulates that constitutionally "good" legislation occurs when the legislature (1) seeks the public
or common good as its end (rather than the good of a "faction"); and,
when choosing the legislative means to achieve that end, (2) the legislature has the requisite knowledge or information to adopt the
means reasonably calculated to secure that end. These criteria, for
Madison, are not simply judicial review criteria - indeed, Madison
made his statement when discussing the value of federal bicameral92. The U.S. Supreme Court has appealed to a "process" criterion for triggering
heightened judicial scrutiny in a variety of cases litigating issues as diverse as federalism, see, e.g., Printz v. United States, 521 U.S. 898, 930 (1997); New York v. United
States, 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. Gerhardt, 304 U.S. 405, 412 (1938); McCulloch v. Maryland, 17 U.S. 316, 428 (1819); the
dormant 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 Footnote
Four, 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. This
often applies to their very errors. But their good sense would despise the adulator who
should pretend that they always reason right about the means of promoting it." THE
FEDERALIST No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
CREIGHTON LAW REVIEW
[Vol. 33
ism - rather, for Madison, these are the goals of American constitutionalism broadly considered. The two positive theoretic models developed below map the process deficiencies of unicameralism directly
onto these two constitutional dimensions of "good government."
Before turning to the models, however, a methodological question should be addressed: Why employ the positive theoretic models
at all? While the models developed below are simple as such things
go in the scholarly economics and political science literature, they
can nonetheless prove daunting to the reader unfamiliar with the
type of reasoning they represent. As simple mathematical models,
they are, of course, unrealistic representations of reality. But the
very unrealism of a model, if properly constructed, is what makes it
useful. The models developed below are intended to serve much the
same function as a street map of a city. If one compares a map of a
city to the real topography of that city, it is certain that what is represented on the map is a highly unrealistic portrayal of what the city
actually looks like. The map utterly distorts what is really there and
leaves out numerous details about what a particular area looks like.
But it is precisely because the map distorts reality - because it abstracts away from a host of details about what is really there - that it
is a useful tool. A map that attempted to portray the full details of a
particular area would be too cluttered to be useful in finding a particular location or too large to be conveniently stored. So it is with
the models presented below. They seek to abstract away from a host
of details that are not relevant for the purposes of comparing unicameral to bicameral outcomes. It is the very abstraction that permits us analytically to "hold everything else equal" and to focus on
the way the two alternatives might affect legislative outcomes. Of
course, everything is not equal, and details often matter. The trick,
then - which is as much a matter of aesthetic taste as it is intellectual judgment - is to develop models that provide just enough detail
to be useful for their intended purpose without being so complex as to
confuse rather than illuminate. 4
We now turn to consider the models and their implications.
A. UNICAMERAL PROCESS AND SELECTING LEGISLATiVE ENDS: THE
FACTION 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" and
concludes that "[in this, economics combines the deductive reasoning of mathematics
with the analogical reasoning of law." ERIC RASMUSEN, GAMES AND INFORMATION: AN
INTRODUCTION TO GAME THEORY 3 (2d ed. 1994).
19991
UNICAMERAL LEGISLATIVE SYSTEMS
should not be identified with modern political parties. Rather, factions, by Madison's famous definition, pursue illegitimate constitutional ends; that is, they pursue legislative ends inconsistent with
the public or common good. "[Factions are] a number of citizens,
whether amounting to a majority or minority of the whole, who are
united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and
aggregate interests of the community." 5 Madison subsequently identified the "great object to which our inquiries are directed" is "[t]o
secure the public good and private rights against the danger of such
a faction.""6
The central threat of faction was that one group would gain hold
reins of power and use it to oppress other groups, whether rethe
of
ligious, political, or economic.97 Bicameralism was thought to mitigate this threat by increasing the difficulty of coordinating factious
action across chambers.9" Two chambers would have different members, different leaders, different dynamics. If a factious leader coordinated factious legislation in one chamber, the other chamber might
still block the deleterious legislation, and factious organization would
be more difficult to coordinate across two separate chambers relative
to organizing legislators in just one chamber.
The positive theoretic model developed here seeks to compare
how cameral choice affects the susceptibility of legislatures to the
problem of faction. It poses the same central legislative issue to both
cameral forms: Distributing policy benefits and taxes among groups
in the population. One reason that tax policy tends to be perennially
controversial 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 FederalistNo. 51:
It is of great importance in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes
of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.... In a society under the forms of which the stronger
faction can readily unite and oppress the weaker, anarchy may as truly be
said to reign as in a state of nature, where the weaker individual is not secured 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 that
they mutually check ambition and usurpation in each other." Benjamin Rush, Observations on the Government of Pennsylvania (1777), in 1 THE FOUNDERS' CONSTITUTION
364 (Phillip Kurland & Ralph Lerner eds., 1987). This was also one of John Adams'
major concerns. Id. at 362.
CREIGHTON LAW REVIEW
[Vol. 33
on. Madison described the obvious legislative incentive problem in
The FederalistNo. 10:
The apportionment of taxes on the various descriptions of
property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which
greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling
with which they overburden the inferior number is a shilling
saved to their own pockets.99
This section models the distribution of taxes and policy benefits by
unicameral and bicameral institutions. Two conclusions follow from
the model. First, bicameral legislatures reject factious legislation
that would be adopted by unicameral legislatures.'0 0 Secondly, the
costs and benefits of policies adopted by bicameral legislatures are
more equitably distributed among state residents than are the costs
and benefits of policies adopted by unicameral legislatures. The distributive outcomes under unicameral processes are shown to be of
the same form which result from acknowledged constitutionally suspect process failures. It deserves reiteration that unicameral proponents identified judicial review as a remedy to factious legislation.''
Outcomes Under Unicameralism
We consider an example in which there are three legislative factions with three (representative) legislators. 2 The legislature will
vote on a public works project. Taxes must be assessed to pay for the
public works project, and excludable benefits will be created by the
project. 03 The project will produce a total (monetarily equivalent)
benefit or value of B 10 4 at a total tax cost of T.' °5 The proposal is not
constrained to be efficient (i.e., it is possible that B < T). 6 A legisla99. 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 making
another 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 will
deal unfairly with minorities"because "[t]he supreme court may still declare acts unconstitutional." Orfield, 34 MICH. L. REV. at 35 (emphasis added). Johnson writes
that "the privilege of resorting to state and federal courts for nullification of unconstitutional laws" is a "more effective deterrent[ ] to unwise and unjust legislation" than a
second chamber and "would still be available to restrain improper ambitions on the
part 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-
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
tive proposal, p, is a proposed distribution of the costs and benefits of
the project among the three legislative factions.' 7 The value or
"utility" of a proposal for each legislator (or faction), given that the
proposal is adopted, is the net value of the distributed costs and
benefits 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 a
voting rule. A strategy for the non-proposing legislators is a voting
rule. An equilibrium'0 9 strategy for a proposer is a proposal rule and
a voting rule such that, given the strategies of the non-proposing
legislators, there is no proposal or voting rule that it could adopt that
would provide it higher utility. An equilibrium strategy for the nonproposing legislators is a voting rule such that, given the strategies
of the proposing legislator and the other non-proposing legislator,
there is no incentive for the non-proposing legislator to alter its
10
vote.
In order to focus on the effect cameral choice has on legislative
Hicks efficient if, upon implementation of the proposal, there is some conceivable
means by which those gaining from the proposal could compensate those losing from
the proposal in such a way that everyone is ultimately left at least as well off, and one
person is strictly better. Kaldor-Hicks efficiency, however, does not require that the
compensation actually occur. See ALLAN M. FELDMAN, WELFARE ECONOMICS AND
SOCIAL CHOICE THEORY 142-44 (1980); RICHARD A. POSNER, ECONOMIC ANALYSIS OF
LAW 12-14 (3d ed. 1986).
107. The distribution of the benefits to each faction is denoted by b,,i e (1,2, 3),
2, 31. Note that
and the distribution of the costs to each faction is denoted by t,, i e 11,
3
3
B=Xb i andT= Yti.
i=1
i=1
Thus, a proposal is an ordered three-tuple,
p = ((b 1,tl),(b 2 ,t 2 ),(b3 ,t3 )) E (BxT) x (BxT) x (BxT).
Or, U, = b - t.
109. The equilibrium concept applied in the analysis here is that of Nash equilibrium, named after its innovator, a recent recipient of the Nobel prize in economics. An
108.
equilibrium is a Nash equilibrium if given the strategy of the other player(s), no player
has an incentive to deviate to another strategy. This is the most popular equilibrium
concept in economic and political analysis and is treated in any standard game theory
text. See, e.g., DREW FUDENBERG & JEAN TIROLE, GAME THEORY 3-36 (1991).
110. Legislators are assumed not to play weakly dominated strategies and employ
only subgame perfect strategies. The first assumption is common in election games to
rule out implausible equilibrium behavior. For example, it might be an equilibrium
strategy for a burdened, non-pivotal legislator to vote in favor of the burdening legislation: because the legislator is not pivotal, there is no gain to be had by changing one's
vote and voting against the proposal. Thus, burdening legislation adopted by a
unanimous vote would be a Nash equilibrium. Ruling out weakly dominated strategies eliminates this type of implausible behavior from the equilibrium prediction.
The assumption that players play only subgame perfect strategies rules out
equilibria that depend on non-credible threats being played off the equilibrium path.
See, e.g., FUDENBERG & TIROLE, supra note 109, at 72-74.
CREIGHTON LAW REVIEW
[Vol. 33
output, several stylized assumptions are made regarding proposal
making and the length of the session. The legislature meets for one
period and during that period considers one proposal. That proposal
may be accepted or rejected by the legislature. To capture the difficulty of coordinating across bicameral chambers, we assume a random recognition rule for selecting the legislator who may make the
proposal, so each legislator has a chance a priori to make the proposal. A proposal wins if a majority of legislators vote for it.111 Each
legislator votes for a policy and associated tax scheme when the net
benefit of the proposal to the legislator's district is at least zero and
against it otherwise.112 The next proposition follows immediately:
PROPOSITIONIII.A. 1: EQUILIBRIUM UNICAMERAL OUTCOMES.
Under a closed-rule, with random recognition, and the identified voting strategies, a unicameral legislature will always
adopt a factious proposal in which one district receives the
a different district bears
entire benefit of the proposal while
113
the entire cost of the proposal.
No matter which legislator proposes, that legislator's district receives
the entire benefit of the policy and one of the other legislators' districts must bear the entire tax burden. Each proposal wins by a vote
of two to one. No legislator has the incentive to deviate from its proposal or voting strategy. It is easy to check that these are equilibrium proposal strategies. A proposing legislator simply needs two
votes. The proposing legislator gaining the benefit will of course vote
for the proposal. Given one vote for the proposal and one vote
against (the legislator whose district bears the tax), suppose the leg111. Legislator i votes for a proposal, p, if Vi(p) = 1, and votes against a proposal if
Vi(p) = 0. The legislature adopts a proposal if:
Vi(p) > 2
112. The following proposition is stated without proof: The equilibrium voting
rule for each legislator i with respect to proposal, p, is defined by:
bi - t i >!0
l=Iif
Vip
V 1p0if bi -ti < 0,
There is no equilibrium in proposal and voting strategies in which the indifferent legislator votes against the proposal. Given that voting strategy on the part of the "indifferent" legislator, the proposing legislator must propose some net gain to at least one
of the other legislators. But whatever net gain is proposed to the other legislator, the
proposer 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 district does better, which overturns the candidate equilibrium.
113. Formally, one of the following proposals are made and are adopted in equilibrium:
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)).
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
islator whose district receives (0,0) under the proposal votes for the
proposal. In that case the legislator's district receive no benefits and
pays no tax. If the legislator votes against the proposal, the payoff is
again zero. Therefore, the legislator has no incentive to deviate and
vote against the proposal. Therefore, the factious proposal wins in
equilibrium by a vote of two to one.
We now turn to propose the same "faction" problem to a bicameral legislature and compare the outcome under the two cameral
forms. The comparison motivates the conclusion that unicameral
outcomes are rightly suspected of being factious relative to bicameral
outcomes. The result justifies heightened judicial scrutiny of unicameral outcomes relative to bicameral outcomes.
Indeed, the
United States Supreme Court's process jurisprudence justifies
heightened judicial scrutiny of similarly skewed distributions of policy costs and benefits that result from legislative process failures."'
Outcomes Under Bicameralism
In each chamber, the legislators represent the same districts and
have the same preferences as in the unicameral case (hence, this
models republican bicameralism). As in the unicameral case, if a
legislator is indifferent to a proposal, it will vote in favor of that proposal. In the case of the second-moving chamber, an indifferent legislator will propose that the bill be sent to the second chamber by the
first chamber. As with unicameral decision-making, one legislator in
each chamber is recognized by a random recognition rule to propose a
bill. Each chamber acts in a separate period, and the period ends
when a chamber approves or rejects a proposal. If the first moving
chamber does not adopt a bill in period 1, then the game ends at that
point. There is no conference committee option."
114. For example, the distribution of benefits and burdens that concerned Justice
Stone in interstate context in South Carolina v. Barnwell Bros. are those "regulations.., whose purpose or effect is to gain for those within the state an advantage at
the expense of those without. . ... " South Carolina v. Barnwell Bros., 303 U.S. 177, 18485 n.2 (1938). For an extended discussion of the relationship between the distribution
of costs and benefits and a failure in republican political processes, see generally
Rogers, 43 AM. J. POL. SCI. 1096.
115. Less than ten percent of bills went to a conference committee in the last Nebraska bicameral legislature. See infra note 150 and accompanying text. This is consistent with congressional practice. Most adopted bills go neither to a conference
committee nor get sent back by one chamber to the other for reconsideration. At the
national level, 80 to 90 percent of legislation never goes to a conference committee, See
generally LAWRENCE D. LONGLEY & WALTER J. OLESZEK, BICAMERAL POLITICS:
CONFERENCE COMMITTEES IN CONGRESS 190-91 (1989), and 70 percent of legislation is
unamended by the other chamber, GARY W. COX & MATTHEW D. MCCUBBINS,
LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE 11 (1993). While this is
a stylized model, it arguably comports with the ability of minority legislators to have
CREIGHTONLAW REVIEW
[Vol. 33
Recall that in the unicameral legislature, if legislator 1 was recognized to propose, its district will receive the entire benefit of the
policy while imposing the entire cost on another district."6 This is
denoted P, for "unicameral proposal." For simplicity in the discussion, in both chambers we simply designate "legislator 1" as the legislator representing the district that receives the entire benefit of the
bill, "legislator 2" as the legislator representing the indifferent district, and "legislator 3" as representing the taxed district.
This leads directly to the first proposition characterizing bicameral outcomes relative to unicameral outcomes.
PROPOSITION III.A.2: BICAMERAL OUTCOMES. The factious
proposal (Pu) that is always adopted by the unicameral legislature is rejected with positive probability by the bicameral
legislature." 7
This follows directly from the difficulty of coordinating action across
two different chambers that vote on the same proposal. Unlike the
equilibrium outcome if PU were proposed in the unicameral legislature, the bicameral legislature will sometimes reject this proposal. If
the taxed faction's legislator is recognized in the second chamber to
make the proposal, that legislator will kill the first chamber's bill."'
The first difference between bicameral and unicameral outcomes
identified by this illustration is that bicameral processes result in a
legislaturerejecting a proportion of factious legislation that the legislature would enact if it used a unicameralprocess. That is, all things
some influence on the agenda by being able to bottle up measures in a committee or
other means of formal or informal influence. Similarly, a conference committee could
be used to coordinate majority proposals between the chambers. Here, again, reference is simply made to already existing norms in which committee members are typically appointed to conference committees and that conference committee members
often 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 bicameral
legislature is one-third. That is, the highly unequal proposal that is always adopted by
the unicameral legislature is rejected one-third of the time by the bicameral legislature. Of course, the precise probability is a figment of the stylized model.
118. In equilibrium, with the indifferent faction voting for the proposal, and with
the indifferent faction proposing P, in the second acting chamber, the expected payoff
to the proposing legislator for proposing P, in the
2 first acting chamber is:
EUI(Pu) = 1B.
The expected payoff, given recognition, is no longer B because the legislator representing faction three will be recognized in the second chamber with one-third probability. That legislator would prefer to kill P, if it were sent from the first-moving
chamber. After all, if the taxed legislator proposes the bill sent from the first-moving
chamber, its faction would realize a payoff of -T > 0. If the legislator kills the bill sent
from the first-moving chamber then the payoff to its faction will be 0.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
held equal, a unicameral legislature can be properly suspected of enacting more factious legislation than a bicameral legislature.
But the difference between bicameral and unicameral outcomes
is more than that some factious proposals would be adopted by a unicameral legislature that would be rejected by a bicameral legislature.
The nature of the bills proposed (and adopted) also changes as a result of the existence of a second chamber. The bicameral legislature
will not simply reject inequitable policies; rather, it will enact more
equitable policies than the unicameral legislature. For example, a
proposal in which the district that receives a policy's benefit also itself pays for the entire cost of the policy would be a proposal that
would be enacted with probability one by both bicameral chambers. 9
This is a more equitable proposal than the unicameral legislature
would have enacted. Note that with this proposal, unlike the unicameral case, the district that receives the benefits of the policy bears
the expense of the policy. This is precisely the constitutionally desirable (or the constitutionally inoffensive) outcome that should be expected 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 be
remedied by the ordinary (unicameral) legislative process. This is
the classic justification for heightened judicial oversight according to
the process criterion.
The following proposition states the conclusion in summary
form.
PROPOSITION II.A.3: Bicameralism produces policies that
are never less equitable than unicameralism, and are sometimes more equitable. The greater the proportion of benefits
to costs, the more likely the bicameral legislature is to
equally distribute the benefits and costs relative 2to
the dis1
tribution the unicameral legislature would enact.'
119. P, = ((B,T), (0,0), (0,0)). Using backward induction, with indifferent legislators sponsoring the bill in the second-moving chamber, and with indifferent legislators
voting for the bill in the first-moving chamber, it is obvious that this bill will be
adopted unanimously by both chambers of the legislature, provided that B > T. There
are, 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 legislation
than does unicameralism. The proof of this proposition contains no more than a couple
of lines of algebra. Because P2 is adopted with certainty in both chambers, the ex-
CREIGHTON LAW REVIEW
[Vol. 33
While unicameralism always results in a legislature enacting inequitable distributions of costs and benefits, bicameral processes never
enact an inequitable policy when a unicameral process would have
enacted a more equitable policy, and the greater the benefits allocated in a bill, the more likely it is that a bicameral process will result in a distribution of costs and benefits that is strictly more equitable than would have been enacted using a unicameral process. The
intuition supporting the link between the size of a policy's benefits
and the incentive for a legislator to propose a more equitable rather
than a less equitable distribution of the bill's costs and benefits is
straight forward: If a proposal has a large benefit relative to its cost,
then the proposer is better off if its district receives that benefit net
of cost with certainty relative to the net gain of receiving the policy's
benefit, while pushing the cost onto another district, but having to
discount that gain by the probability that the proposal will be killed
in the second chamber.
The model presented above leads to two conclusions comparing
bicameral outputs to unicameral outputs. First, bicameral legislatures will often reject factious legislation that would be adopted by
unicameral legislatures. Secondly, bicameralism creates an incentive
system that induces legislators to propose more equitable policies
relative to unicameralism. Bicameralism, of course, is not a legislative panacea. Factious legislation can survive bicameral decisionmaking as well. Nonetheless, relative to unicameral legislatures,
bicameral legislatures prevent adoption of factious legislation in the
first place and promote adoption of more equitable policies in the second. Further, there is no case in which factious legislation would be
adopted by a bicameral legislature when it would not be adopted by a
unicameral legislature. The unicameral legislative process lacks the
incentives legislators have in bicameral systems to propose and enact
objectively fairer distributions of policy costs and benefits. Unicameral legislative systems can thus be generically suspected of enacting
more factious legislation, both quantitatively and proportionally,
relative to that enacted in bicameral systems.
pected payoff for legislator 1 proposing P2 is EU,(P,)1 = B - T. Recall that
EU,(PI) = 2 B. When - B<T,
then EU(P) > EUI(P 2 ) and legislator 1 is better off proposing Pu relative to P. When
I 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 inequitable
1
as the outcome would have been in a unicameral legislature. But when B > T and P2
is proposed and adopted, then the bicameral outcome is strictly more equitable than
the unicameral outcome for the same values of B and T.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
B. UNICAMERAL PROCESS AND SELECTING LEGISLATIVE MEANS: THE
INFORMATION MODEL
Although not often receiving attention as a distinct constitutional interest, legislative information is 'a crucial component in tailoring a law to address a policy problem and, thus, is an issue of significant constitutional importance. Indeed, Madison argued that the
lack of informed legislators was a greater problem for legislatures
than the pernicious problem of faction, 122 and fostering informed legislators was a subject of recurring interest to the writers of The Fed123
eralist.
Even earlier, the informational basis of legislative action whether a distant Parliament could obtain the requisite information
to legislate for the happiness of the colonies relative to the local and,
hence, more informed colonial assemblies - was one of the central
disputes provoking the American Revolution. 24'
This concern with
informative legislatures was subsequently reflected in the development of a constitutional jurisprudence in which judicial scrutiny of
legislative "reasonability" included reviewing the empirical basis the
legislature had for believing that the statutory means it adopted
would actually achieve the statute's purpose. At bottom, the intuition on the informational superiority of bicameral processes is no
deeper than that suggested in the adage, "two heads are better than
one." That is, two independent legislative assessments of the empiri122.
Madison writes in THE FEDERALIST No. 62:
A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the
means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I
scruple not to assert that in American governments too little attention has been
paid to the last.
THE FEDERALIST No. 62, supra note 57, at 380 (emphasis added); cf James Madison's
earlier complaint in THE FEDERALIST No. 62: "It may be affirmed.., that no small
share of the present embarrassments of America is to be charged on the blunders of
our governments; and that these have proceeded. from the heads rather than the
hearts 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 without representation" not simply to a distributional complaint over Parliamentary ends,
but also to an informational complaint regarding Parliaments ability to legislate appropriate statutory means. James Otis, for example, relied on an informational rationale to argue that even direct American representation in the British parliament
would be inadequate for American purposes:
No representation of the colonies in parliament alone, would, however, be
equivalent to a subordinate legislative [sic] among themselves .... It would
be impossible for the parliament to judge so well of their abilities to bear
taxes, impositions on trade, and other duties and burthens, or of the local
laws 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.
CREIGHTONLAW REVIEW
[Vol. 33
cal state of the world that a policy is drafted to address will increase
the odds that the statutory means enacted will actually achieve the
statute's purpose. 2 5 In the older judicial vocabulary, the choice of
means is a question of the "wisdom" of a legislative enactment. As
with the appropriateness of judicial responses to "unjust" factious
proposals issuing from a unicameral legislature, so, too, unicameral
proponents explicitly stated that the judicial prerogative should exthe "wisdom" of the statutes that unicameral legtend to reviewing
12
islatures enact.
1
The model developed in this section examines the effect cameral
choice has on the ability of a legislature to tailor its choice of legislative means to a given end. The model shows that bicameral consideration of a proposal increases the probability that the legislature
adopts the appropriate means to achieve a given end relative to unicameral consideration. That is, bicameral decision-making actually
results in better laws being adopted than would be adopted using a
unicameral 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 likely
achieve the given legislative end than the statutory means
selected by a unicameral legislature, and thus will generate
a higher social value to legislation than statutes enacted by
a unicameral legislature.
The formal motivation for this claim is somewhat lengthy and so is
For example, James Wilson argued:
[Many] reasons... may be assigned, why all the advantages, to be expected from two branches of a legislature, may be gained and preserved,
though those two branches derive their authority from precisely the same
source....
[These include a] double source of information,precision, and sagacity in
planning, digesting, composing, comparing, and finishing the laws, both in
form and substance.
125.
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, and
involves interests of vast difficulty and complexity, and requires nice adjustments, and comprehensive enactments, it is of the greatest consequence to secure 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 independent revisory authority, must have the means, and can scarcely fail to
possess 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 and
unjust legislation" than a second chamber. JOHNSON, supra note 14, at 93 (emphasis
added).
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
reported in the Appendix. It is only briefly described here. Two versions of the same bill are considered by a unicameral legislature and
a bicameral legislature. The means used to achieve the given end in
one version of the bill is better than the other version, depending on
empirical conditions that are not known with certainty, and which
affect the outcome of the selected policy. The policy outcomes resulting from each cameral form are then compared. Proposition
III.B.1 is true regardless of whether the first/unicameral chamber is
more or less informed than the second chamber. That is, bicameralism produces a net social value over unicameralism not simply because each chamber can specialize in different subjects and the more
informed chamber will have the most influence on legislation, but
also because the existence of two chambers and the possibility of a
conference committee creates a process through which information is
aggregated and, hence, the probability of making a wrong legislative
decision is lower.
This model illuminates an informational rationale for bicameralism: Bicameral decision-making produces better legislative outcomes than does unicameral decision-making. This occurs because
the policies adopted by two chambers are based on a more accurate
empirical assessment of the world compared to when only one chamber makes the choice and, hence, bicameral policies are better tailored to achieve the given ends of the policy. Second chambers never
decrease the probability that a legislature will adopt an appropriate
statutory means to achieve a given end, but can often increase it substantially. The legislation that a unicameral legislature enacts will
more consistently employ legislative means that are inappropriately
tailored to achieve the given end. Hence, increased scrutiny by
courts of legislative means in unicameral systems is warranted compared to the scrutiny that courts provide in bicameral systems.
While the degree of judicial deference to legislative prerogative
represented, for example, by the dissenters in Lochner might be appropriate for legislation produced in a bicameral context, there is neither historical nor substantive justification for its application in a
unicameral constitutional system. It has been shown that a unicameral legislative process tends to produce constitutionally more suspect legislation than does a bicameral process. Unlike the action of
the New York legislature that Harlan considered in his dissent, the
models discussed in this Part demonstrate that there is reason to
suspect the quality of the information underlying unicameral legislation and that there is reason to suspect whether unicameral legisla-
CREIGHTON LAW REVIEW
[Vol. 33
tion is "for the common good."127 Along both prongs of the judiciary's
reasonability doctrine, unicameral process lacks what bicameral process provides. Consequently, judicial review standards developed to
review bicameral legislative outcomes are inappropriately deferential
when applied to review unicameral outcomes. This conclusion, however, would not have surprised the unicameralists. They recognized
that cameral reform would change the legislative process and would
change the previously established relationships between coordinate
branches of government. Unicameral proponents assumed the continuation of rigorous judicial scrutiny as a necessary part of the system of checks and balances in unicameral constitutional systems.
According to the unicameralists, courts would at least provide a partial substitute for the role second chambers played in bicameral legislative processes. We now turn to consider what particular review
standards might be appropriate to the particular weaknesses to
which unicameral legislative systems are suspect.
PART IV. APPROPRIATE JUDICIAL REVIEW STANDARDS IN
UNICAMERAL LEGISLATIVE SYSTEMS
Nebraska courts have followed federal courts in adopting a deferential approach when reviewing ordinary social and economic policies.12 The positive theoretic models developed in Part III and the
history of the unicameral reform discussed in Part II show that the
Nebraska unicameral reform implies an appropriately heightened
role for the judiciary in its constitutional system relative to the role
of the judiciary in bicameral systems. Specifically, the models developed in Part III show that the absence of a second chamber increases
the probability a legislature will enact factious legislation and decreases the probability that the means a legislature chooses to remedy a policy problem will be reasonably related to the statute's purpose. These results map directly onto the two prongs of "reasonability review" performed by courts under the U.S. Constitution's and the
Nebraska Constitution's equal protection129 and due process 1 30 re127. Recall Harlan's conclusion: "[W]e are not to presume that the state of New
York has acted in bad faith. Nor can we assume that its legislature acted without due
deliberation, or that it did not determine this question upon the fullest attainable information, 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 guarantee of equal protection in its constitution ("No person shall be ... denied equal protection of the laws," NEB. CONST. art. I, § 3) the Nebraska Supreme Court had held that
article III, section 18 of the Nebraska Constitution forbidding special legislation "concerns itself with disparate treatment in much the same manner as does the language
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
quirements. Because unicameral legislative processes produce constitutionally more suspect legislation along both prongs relative to
bicameral legislatures, courts reviewing unicameral outcomes should
of [the Fourteenth Amendment of the U.S. Constitution], which prohibits a state from
making or enforcing any law which denies any person within its jurisdiction 'the equal
protection 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 Nebraska Supreme Court adopted was identical to that applied under the Fourteenth
Amendment: "The Nebraska Constitution and the U.S. Constitution have identical
requirements for equal protection challenges." Pick v. Nelson, 247 Neb. 487, 498, 528
N.W.2d 309, 318 (1995) (citations omitted).
The Nebraska Supreme Court upholds a regulation under both the U.S. and Nebraska Constitutions if "the special class has some reasonable distinction from other
subjects of like general character, which distinction bears some reasonable relation to
the legitimate objectives and purposes of the legislation." State v. Popco, Inc., 247 Neb
440, 443, 528 N.W.2d 281, 283 (1995). The Pick court stated that "[c]lassifications that
do 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 and
federal Constitutions has the burden to prove that there was no rational basis for the
classification." Pick, 247 Neb. at 498, 528 N.W.2d at 318 (citations omitted).
Of course, under deferential review, the legislature need not adduce evidence
supporting 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 in
state policy, or if any state of facts can reasonably be conceived which would sustain
the 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 a
standard statement of the federal standard in Federal Communications Commission v.
Beach Communications,Inc.:
In areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights
must be upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification. Where there are "plausible reasons" for Congress' action, "our inquiry is
at an end." . .. [T]hose attacking the rationality of the legislative classification
have the burden "to negative every conceivable basis which might support it."
... [Tihe absence of "legislative facts" explaining the distinction "[o]n the record" has no significance in rational-basis analysis. In other words, a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data.'
Federal Communications Comm'n v. Beach Communications, Inc., 508 U.S. 307, 31315 (1993) (citations omitted).
130. U.S. CONST. amend. XIV; cf NEB. CONST. art. I, § 3. The Nebraska Supreme
Court will uphold legislative regulations as constitutionally permissible impositions on
liberty if they are "reasonable means to ... legitimate state ends." Distinctive Printing, 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 statute
operates uniformly on all within a class which is reasonable ....
•.. The extent to which the Legislature may exercise the police power, an
attribute of state sovereignty, is primarily a matter of legislative judgment,
but the purpose of the regulatory matter must be ligitimate [sic] and the
means 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) (citations omitted).
CREIGHTONLAW REVIEW
[Vol. 33
apply more rigorous standards of review than they need to (or
should) when reviewing bicameral outcomes. Just what standards
courts should apply when reviewing state unicameral enactments is
discussed in this Part.
Given that there is both an historical and a substantive basis for
less deferential judicial review of unicameral enactments, just how
less deferential should that review be? We have seen that unicameral
legislatures are (1) more likely to pursue illegitimate, factious policies that distribute policy benefits and costs inequitably relative to
bicameral legislatures; and (2) are less likely to choose the appropriate legislative means relative to a given end (again, relative to bicameral legislatures). The implications of models 1 and 2 map directly onto the constitutional means-ends inquiry that courts apply
when reviewing legislation. Model 1 demonstrates that factional
policies are easier to achieve in a unicameral legislature relative to a
bicameral legislature. Thus, in a unicameral system, courts need to
scrutinize the legitimacy of legislative purposes more rigorously than
they need to in a bicameral system. Model 2 demonstrates that a
unicameral legislature is more apt to adopt an unreasonable statutory means relative to a bicameral legislature. Thus, courts in a unicameral system should inquire more rigorously into the reasonability
of empirical judgments upon which statutory means are based. We
now turn to consider what appropriate standards might be in light of
the particular weaknesses of unicameralism, and in light of the competence of courts to scrutinize unicameral legislation for those weaknesses.
The judiciary today scrutinizes the reasonability of legislative
means and ends with differing levels of rigor. The level of rigor
courts adopt is often linked to the specific nature of the legislative
process that produced the legislation.'
We begin our discussion of
an appropriate unicameral review standard by considering the next
"higher" level of scrutiny above that of rationality review, the relatively new constitutional test of "intermediate scrutiny." This standard requires that a statutory classification be "substantially related
to an important governmental objective."'
To date, it "has been applied to content-neutral restrictions that place an incidental burden
on speech, to disabilities attendant to illegitimacy, and to discrimination 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
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
United States Supreme Court has also applied a form of intermediate
review to scrutinize governmental restrictions on commercial
speech.'
A.
STANDARDS FOR REVIEWING LEGISLATIVE MEANS
The critical difference between deferential "rational means"
scrutiny of legislation and the requirement that legislatures demonstrate a "substantial relation" to a governmental purpose is that, under the substantial basis test, the burden of proof shifts to the legislature to demonstrate to the court in some manner that the means
adopted by the legislature will be likely to achieve the statutory purpose. This does not mean that a court must hold what amounts to a
legislative hearing on a law. It does, however, imply that the legislature must demonstrate that there is at least "substantial evidence"
underlying its legislative judgment. The United States Supreme
Court discussed the nature of evidentiary review under intermediate
scrutiny in Turner BroadcastingSystem, Inc. v. Federal Communications Commission:
The expanded record now permits us to consider whether
the must-carry provisions were designed to address a real
harm, and whether those provisions will alleviate it in a material way....
In reviewing the constitutionality of a statute, "courts
must accord substantial deference to the predictive judgments of Congress." Our sole obligation is "to assure that, in
formulating its judgments, Congress has drawn reasonable
inferences based on substantialevidence."'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 inquires
whether the government asserts a substantial interest in the regulation, whether the
regulation "directly advances" the asserted interest, and whether the regulation is
'more extensive than necessary." Central Hudson, 447 U.S. at 591 (Rehnquist, J, dissenting). Recently, a majority of the Court could not agree on the continuing appropriateness of applying the Central Hudson test to commercial speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Of interest in this context, however, is
that under this test "the State bears the burden of justifying its restrictions ...it must
affirmatively establish the reasonable fit we require." Board of Trustees v. Fox, 492
U.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 possible
to give the courts a more substantive involvement in reviewing legislative judgments
without necessarily violating the separation of powers:
This is not a case in which we are called upon to give our best judgment
as to the likely economic consequences of certain financial arrangements or
business structures, or to assess competing economic theories and predictive
judgments, as we would in a case arising, say, under the antitrust laws.
CREIGHTONLAW REVIEW
[Vol. 33
In order to discharge constitutional responsibilities in reviewing
the "reasonability" of legislation, courts often review the informational or evidentiary basis for legislation. Given that unicameral
legislatures aggregate information worse than bicameral legislatures
in their legislative processes, applying a scrutiny more rigorous than
rationality review would have courts reverse the presumption of constitutionality, and engage at some level in reviewing the reasonability of the empirical basis for legislation. Provided there is a constitutional basis warranting more rigorous scrutiny - as has been argued
above - this sort of judicial inquiry need not represent judicial usurpation of legislative prerogative.3 6
B.
STANDARDS FOR REVIEWING LEGISLATIVE ENDS
Turning to the other prong of the reasonability test, what is the
appropriate level of scrutiny that courts should apply to review
statutory purposes under unicameralism? As noted above, intermediate review requires that ends be "substantial." That seems too
high of a standard for ordinary social and economic legislation.
Nonetheless, Model 1 does suggest that unicameralism facilitates
factious legislation relative to bicameralism. A higher level of scrutiny relative to the ability to "conceive" a legitimate purpose - but
less than requiring that the purpose be "substantial" - would be to
measure the scrutiny not against purposes contrived in a court room,
but against purposes that actually motivated or could be reasonably
presumed to have motivated a legislature.
Justice Brennan long advocated that the reasonability of legislative purposes be measured against actual as opposed to merely conceivable legislative purposes.13 vWhile a majority of the Supreme
"Statutes frequently require courts to make policy judgments. The Sherman
Act, for example, requires courts to delve deeply into the theory of economic
organization." See Holder v. Hall, 512 U.S. 874, 966 (1994) (separate opinion
of Stevens, J.). The issue before us is whether, given conflicting views of the
probable development of the television industry, Congress had substantial
evidence for making the judgment that it did. We need not put our imprimatur on Congress' economic theory in order to validate the reasonableness of its
judgment.
Turner, 520 U.S. at 207-08; cf. 44 Liquormart, Inc., 517 U.S. at 505 (articulating the
standard in commercial speech cases that "the State bears the burden of showing not
merely that its regulation will advance its interests, but also that it will do so 'to a
material degree.").
136. Recall that when two chambers agree on the informational basis for legislation, courts and other observers can deduce that the probability the legislature chose
the 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 relative
to 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,
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
Court has never embraced Brennan's suggestion, in a concurring
opinion in U.S. Railroad Retirement Bd. v. Fritz, Justice Stevens argued for a modified version of Brennan's view. The claim being litigated in that case asserted that the purpose of the legislation under
review was factional - that is, its purpose was to redistribute wealth
from one class to another for no valid public purpose. Stevens wrote:
Justice Brennan is... correct in reminding us that even
though the statute is an example of "social and economic
legislation," the challenge here is mounted by individuals
whose legitimate expectations of receiving a fixed retirement
income are being frustrated by, in effect, a breach of a solemn commitment by their Government. When Congress deprives a small class of persons of vested rights that are protected - and, indeed, even enhanced - for others who are in
a similar though not identical position, I believe the Constitution requires something more than merely a "conceivable"
or a "plausible" explanation for the unequal treatment.
I do not, however, share Justice Brennan's conclusion that
every statutory classification must further an objective that
can be confidently identified as the "actual purpose" of the
legislature. Actual purpose is sometimes unknown. Moreover, undue emphasis on actual motivation may result in
identically worded statutes being held valid in one State and
invalid in a neighboring State. I therefore believe that we
must discover a correlation between the classification and
either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an
impartial legislature. If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect. If, however, the adverse impact
may reasonably be viewed as an acceptable cost of achieving
a larger goal, an impartial lawmaker could rationally decide
that that cost should be incurred."3 8
The test that Stevens suggested is more deferential than the "substantial purpose" test of intermediate review. Nonetheless, the legislature is not free to assert merely conceivable, but admittedly post
hoc, rationalizations for its legislation when in court. It must be able
to persuade a judge that the purpose being defended actually motivated the legislature or would be sufficient to have motivated adoption of the policy by an impartial - i.e., a non-factious - legislature.
679-80 (1981) (Brennan, J., concurring). Gerald Gunther first advanced the idea of
having rationality review "with bite" by having courts judge the rationality of classification 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).
CREIGHTONLAW REVIEW
[Vol. 33
Putting the two parts of the above discussion together, we can
now suggest a constitutional reasonability test appropriate to review
unicameral legislation: An ordinary social or economic measure
adopted by a unicameral legislatureis constitutionallyreasonableif it
has a substantialrelation to an actual, legitimate governmental purpose, or a legitimate governmental purpose that could be reasonably
presumed to have motivated an impartial legislature. In this formulation, the standard of review for legislative means and ends is only
one step above the deferential rationality standard. To be sure, it is
certainly possible that even higher levels of scrutiny are justified by
the arguments developed here, but courts properly show reticence to
get overly involved in policy issues beyond that minimally necessary
to discharge their constitutional obligations.
PART V.
ARE THERE OFFSETTING PROCESS ADVANTAGES
TO UNICAMERAL SYSTEMS?
The argument developed above is that unicameral legislative
processes are weaker than bicameral legislative processes along two
constitutionally relevant dimensions. George Norris's argument for
unicameralism, while focusing on the claim that second chambers
were an unnecessary expense for states (particularly during the Depression 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 unnecessary 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 duties they are to perform are of exactly the same nature. Why should we then
have two bodies instead of one, and burden our taxpayers with the necessarily
increased expense, to attain the object that can be fully attained by one house
instead of two?
The plan outlined in the proposed amendment to the constitution would
save money for the taxpayers. ... Many thousands of dollars would be saved
annually to our taxpayers. The expense of the legislature is not only the salary that is paid to its members. There are hundreds of other items which enter into the expenses of a legislature, all of which increase as the membership
increases.
One of the objects to be attained in the proposed plan is to decrease taxation. We have reached a time in this depression when the importance of this
subject cannot be overestimated.
Id. at 3277, 3279.
Jeremy Bentham asserted a similar argument:
The existence of two chambers, each sharing in legislation, will, according to Bentham, involve useless delay in the process of legislation. To pass a
law will then necessarily cost double the amount of effort. The same documents, witnesses, and most of the arguments will have to be presented in both
chambers.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
unicameralism. This Part considers the claim that, even if unicam-
eralism suffers from process deficiencies relative to bicameralism
along the constitutional dimensions discussed above, it nonetheless
brings with it its own offsetting process advantages and, hence,
heightened judicial review is not necessarily appropriate for states
governed 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-chamber
legislative disagreements persistently frustrated the representative
process; and that the existence of two legislative, chambers diminished electoral responsibilities of legislators because voters have difficulty following the actions of two state legislators. We consider
each criticism in turn.
First, Norris argued that second chambers were aristocratic,
anti-democratic institutions. He consistently argued that bicameralism was designed particularly to protect property against the people by creating one chamber in which "the rights of property" would
be protected and the other chamber that would represent the people
"against property."' 4 ' As pointed out in Part II.B, however, Norris
consistently conflated the classical bicameralism of Britain's Parliament (in which commoners elected one chamber but aristocrats controlled the other) with the "republican" bicameralism as practiced in
the United States (in which the same set of electors select the legislators for both chambers). Contrary to Norris, modern historians concluded "Americans of the founding era rejected the notion that the
senate should represent property and the house, persons."1
Additionally, even, if Norris's characterization of the "aristocratic" elecRockow, 22 AM. POL. Sci. REv. at 583. Johnson reported that the first session of the
Nebraska unicameral legislature in 1937 cost $150,000. The cost of the last bicameral
legislative session in 1935 cost $202,500. JOHNSON, supra note 14, at 142. Nonetheless, the benefits of bicameralism in the form of better legislation identified by the
models in Part III can be translated in social value as well for comparison with the
modest cost advantage of unicameralism. Given the potential magnitude of social
value conferred by second chambers, it is entirely likely that unicameralism may be a
reform that is "penny wise, but pound foolish."
140. If the process argument for heightened scrutiny of unicameral state legislatures is correct, does it also imply the appropriateness of heightened scrutiny for the
decisions of city and other local governments because their legislative powers are almost universally committed to unicameral bodies? The answer is no, because there is
no analogous process argument even though the legislative authority of local governments 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 and
decisions 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).
CREIGHTONLAW REVIEW
[Vol. 33
toral base of second chambers in state legislatures was once true, it is
simply no longer relevant to modern state legislatures which, as a
matter of constitutional law, have no choice but to apportion both
chambers on the basis of population. 4 ' Finally, as demonstrated by
the positive political models developed above, second chambers in
republican bicameral systems are actually representation enhancing
institutions. Bicameralism helps guarantee that both the means and
ends of legislation will actually promote the common good, rather
than serve a narrow segment of the polity or fail to achieve the purpose at which the legislation aims.
Next, Norris objected to the practices of the conference committees of his day. Its "work is performed.., in secret," he complained,
without records of its deliberation or votes.'44 It is selected "by the
presiding officers of the different branches" and thus is not subject to
full legislative accountability.' 4 ' Its compromises are offered under a
closed rule to the parent chambers and, hence, are not subject to
regular amendment. 14 6 There are several problems with Norris's argument. First, while Norris insisted that conference committees are
a necessary evil for bicameral systems,'4 7 the truth is quite the opposite. There are any number of alternative reconciliation mechanisms
for bicameral disagreements that do not involve conference committees. 4 ' In fact, the New Jersey legislature, for example, has not used
a conference committee since 1973, and 34 of the 52 national bicameral legislatures do not use conference committees to reconcile bicameral 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 ever
been devised that can handle disagreement between the two houses." Norris, 181
ANNALS 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 conference committee. The most often used agreement mechanism is "motioning" (and is
sometimes called the "shuttle" or "navette"). This occurs when chambers send legislation back and forth until both can agree on the same wording. Fifty-two out of fiftythree bicameral countries currently employ motioning (although not necessarily exclusively) as an agreement mechanism. TSEBELIS & MONEY, supra note 7, at 55;
LONGLEY & OLESZEK, supra note 115, at 23. Additionally, in the face of bicameral
disagreement, 13 bicameral countries have both chambers meet and vote in a common
assembly. In 31 countries, one of the chambers provides the definitive vote. Usually
the lower chamber is accorded the definitive vote, but some legislatures provide it to
whichever is the initiating chamber. In a couple of countries, new elections are called
in the event of intractable bicameral disagreement.
149. TSEBELIS & MONEY, supra note 7, at 55, 56-62.
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
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 the
last Nebraska bicameral legislature in 1935, only 26 (8.6 percent)
went to a conference committee. 150 The numbers are similar for other
states and at the national level.' 5'
Additionally, Norris's complaints that conference committee
meetings were held in secret and appointments are made at the unchecked discretion of the presiding officers in each chamber are
anachronistic today. Since the 1960s, wide-ranging reforms have
been made in the practice of state and national legislative conference
committees to open up their deliberations and to make them more
accountable to their parent chambers. 5 2 While the conference system may have been abused by legislatures in the 1930s, modern day
legislatures have the tools available to them to remedy Norris's major complaints against the conference system. And if conference
committees still continue to distort bicameral outcomes, then they
can simply be banned with little trouble to bicameral processes.
A third criticism advanced by Norris and others against bicameralism was that it diminished electoral responsiveness. He asserted
that the complicated process of having two separate chambers consider the same bill simply confuses voters and reduces the possibility
1 53
that responsible legislators would be held accountable at the polls.
While this is a possibility, what little evidence there is suggests that
Nebraskans do not differ at all in the attention they pay to their legislature relative to voters in bicameral states.1 54 After all, in addition
to state legislators, voters must pay attention to a President, two
U.S. Senators, one House member, and a welter of additional state
and local elected officials, all who influence the policies that affect
voters. Indeed, most voters in Nebraska and other states cannot
identify their state legislators, let alone identify them with particular
policy 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 THE
LEGIS. 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 representatives, and gives opportunity to the representatives to evade responsibility for
their actions.").
154. See Peverill Squire, Professionalizationand Public Opinion of State Legislatures, 55 J. POL. 479 (1993). Indeed, Squire found that Nebraskans actually paid less
attention to their legislature than people in other states, but the difference was not
statistically significant. Squire, 55 J. POL. at 483.
CREIGHTONLAW REVIEW
[Vol. 33
existence of one more elected official for a second legislative chamber
contributes much to the ostensible inability of voters to hold state
legislators accountable for the actions they take.
Further, it is unclear that unicameralism actually decreases the
opportunities legislators have to shift the blame to someone else: If
legislators do not have the members of another chamber to blame for
failed policies or inaction, they can still shift simply shift blame to
the other legislators in the one chamber. There is no reason to believe, nor any evidence to suggest, that the elimination of one legislative chamber increases legislative accountability to voters, let alone
that this type of failure, if it exists, would imply that there is no need
for the increased scrutiny of courts to compensate for unicameral
weaknesses as justified in the argument above.
While unicameralism may carry with it some benefits - most notably in the form of (modest) cost savings from the elimination of one
legislative chamber - there are no discernable, constitutionally relevant process advantages that unicameralism confers that could offset
the process deficiencies that unicameralism introduces. While states
may choose to eliminate one legislative chamber for reasons of cost or
legislative efficiency, the separation of powers doctrine implies that
there must be a increase in the rigor of judicial review to substitute
for the loss of legislative review otherwise accorded by second chambers.
CONCLUSION
The elimination of a second legislative chamber necessarily affects the checks and balances of a state's constitutional system. Unicameral proponents insisted that the check of a second chamber was
not necessary because courts and other institutions would take up
whatever constitutional slack was left by its elimination. Nebraska
courts, however, neglected to follow up on this expectation and reconsider their role in the modified system of checks and balances that
resulted from the state's unique constitutional choice. Consequently,
by applying the same standards of judicial review as applied by
courts in bicameral systems, Nebraska courts have been inappropriately deferential to the legislature when reviewing its enactments for
constitutional reasonability. Nebraska's unique constitutional structure requires its courts to develop an equally unique constitutional
jurisprudence.
Drawing on two positive theoretic models comparing unicameral
and bicameral legislative processes, this article discussed the level of
judicial review that would be appropriate given the constitutional
weaknesses of unicameral outcomes. The comparison demonstrated
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
111
that the ends and means of legislation are more constitutionally suspect when a product of a unicameral legislature than when they are a
product of a bicameral legislature. The discussion in Part IV then
considered the level of heightened review that might be appropriate
under Fourteenth Amendment reasonability requirements to at least
partially compensate for the constitutional weaknesses of unicameralism. Finally, whether unicameralism enjoyed any compensating
process advantages relative to bicameralism was discussed in Part V.
None was found. The implication remains that given the historical
expectation of unicameral proponents and the substantive positive
theoretic arguments developed above, that courts reviewing the ordinary social and economic enactments of the Nebraska unicameral
legislature should apply a higher level of scrutiny than they currently provide. While a highly deferential "rationality" review may
be appropriate when reviewing the ordinary enactments of state bicameral legislatures, it is inappropriately deferential given Nebraska's unique legislative system.
CREIGHTONLAW REVIEW
[Vol. 33
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 possible actors: Chamber 1, chamber 2 (which always act), and a conference 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 preferences 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 enacting 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 communicated by the actions of institutions in previous periods. Institutional
beliefs about the true state of the world are derived from these signals. The nature of the private signals received by each chamber and
the conference (if held) is discussed first. Analysis of the implications
15 6 Beof the model draws on several different probability measures.
gin with:
155. This assumption can be relaxed without significantly altering the results
derived below, but it provides a great deal of economy.
156. See, e.g., JACK HIRSHLEIFER & JOHN G. RILEY, THE ANALYTICS OF
UNCERTAINTY AND INFORMATION 170-208 (1992).
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
(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 that
holds 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 simplicity and also permits the conditional probabilities to be abbreviated by
qboB") In general, q' q for ij, i,jE 11, 2, cc).
qa=
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 correlationvalue
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
= the joint probability of state s and message m for institution i
in period t.
in s
(APP. 6)
i't
Isom = the conditional probability of state s, given message m in period 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 bill
recommendation). Before considering the social value added by a
second chamber, it is useful to consider the informative value of unicameral 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 period 4 (if it exists). More general results are available from the author.
CREIGHTONLAW REVIEW
[Vol. 33
PROPOSITION APP. 1. Legislative means adopted by a uni-
cameral legislature will achieve a given end with a probability equal to or greater than 50 percent, and the legislation 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,
uI
ulI
i,t
qm.s = qa.A = qbB- q Because there is only one chamber updating
from a prior probability of 0.5, the expected payoff if the unicameral
legislature 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 course
has no incentive to deviate and vote for B given that m' = a. (If it
were 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 redesignate the unicameral chamber as chamber 1. Consider the following proposition.
PROPOSITION III.B.1. The statutory means selected by a bi-
cameral legislature to a achieve a given end will more likely
achieve the given legislative end than the statutory means
selected by a unicameral legislature, and thus will generate
a higher social value to legislation than statutes enacted by
a unicameral legislature.
Proposition III.B.2 is true regardless of whether the first/unicameral
chamber is more or less informed than the second chamber. That is,
bicameralism produces a net social value over unicameralism not
simply because each chamber can specialize in different subjects and
the more informed chamber will have the most influence on legislation, but also because the existence of two chambers and the possibility of a conference committee creates a process by which information is aggregated and, hence, the probability of making a wrong decision is subsequently lower.
First consider the example when the second chamber is better
informed 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 is
redesignated as the "first" bicameral chamber. As before, it receives
a signal correlated with the true state of the world, q' = 0.6, and let
the first/unicameral chamber again receive the message mu = a. (The
UNICAMERAL LEGISLATIVE SYSTEMS
1999]
argument given mu = b would be strictly analogous.) Given that the
first/unicameral chamber observes only one signal regarding the true
state of the world, its posterior probability regarding the state of the
world 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 heuristic
clarity. First, a likelihood matrix reports the conditional probability
that chamber 2 receives a particular message in period 2, q'. The
prior probability for a second chamber in the next period would just
be the posterior probability of the first/unicameral chamber in period
1.
22
U
0.6, and 2B,2 =-qU=0.4. The likelihood matrix
therefore is:
Messages (m)
e,2
a
A
0.7
b
0.3
B
0.3
0.7
States (s)
Table 1
Secondly, a joint probability matrix reports the probability of the
state being s and the message being m, or
j
2,2
.2,2
__[n12,2 2,22
Js(m',m 2)]=t s
q(m',
)os
1 .
Messages (m)
j2,2
A
a
0.42
b
0.18
B
0.12
0.28
qm
1 0.54
0.46
States (s)
Table 2
A potentialposteriormatrix can be calculated from Table 3.2,
[Vol. 33
CREIGHTONLAW REVIEW
l2,
2
p
2,2
= [J,2l~
m
2,2
'.(M1,
M2)]
2 ]
Messages (m)
i2 ,2
a
b
A
0.778
0.391
B
0.222
0.609
States (s)
Table 3
With a bicameral legislature, there is always the possibility that the
chambers will choose an additional message service in the form of a
conference recommendation. So the respective matrices for the conference committee are developed here as well. We are most interested in the case in which the chambers disagree in their assessment
of 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:
r2ab
r3 =031ad72
ZAe(a*) =A =0.391
qc.
1 - q.
and
lB.(ab) =
7r =0.609
Recall that
The likelihood matrix for the conference is:
Messages (m)
LC
a
b
A
0.7
0.3
B
0.3
0.7
States (s)
Table 4
qC
3
_qc, and
UNICAMERAL LEGISLATIVE SYSTEMS
19991
The joint probability matrix for the conference committee is:
Messages (m)
IF
A
a
0.274
b
0.117
B
0.183
0.426
0.457
0.543
States (s)
q-
Table 5
A potentialposterior matrix:
Messages (m)
lc
a
b
A
0.60
0.215
B
0.40
0.785
States (s)
Table 6
THE CONTRIBUTION OF A SECOND CHAMBER TO SELECTING
THE BEST LEGISLATIVE MEANS
Now we use the above information to compute the marginal
value of legislating with two chambers relative to legislating with
one chamber. When m2 = a, then the second chamber is not informationally productive. If (mg,m 2 ) = (a,a), the bicameral legislature
would adopt the same version of the bill as the unicameral legislature. But if n 2 = b, then the second chamber is informationally pivotal and the expected gain to a bicameral decision over the unicameral 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 expected value of the legislature adopting policy B given that the prob-
CREIGHTONLAW REVIEW
[Vol. 33
ability that the state of the world is actually B, 0.609 (and the probability that the state of the world is A is 0.391). But the expected
value of a second chamber over unicameral decision-making also includes the additional left-hand term because the second chamber
prevents the wrong choice that the unicameral legislature would have
made given that it observed m = a. The value of correcting the mistake 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 given
that the two chambers observed different signals regarding the true
state of the world. The expected value of a second chamber must be
discounted by the probability that the chambers actually observe different signals. In order to compute the expected marginal value of
the second chamber, then, two additional cases need to be considered:
The case when a conference is called and the case when no conference committee is called.
If no conference committee is held, then the expected value of the
second chamber message service is simply the expected payoff when
In =
b discounted by the probability that M = b is actually observed.
From equation II.B.7 and Table 2, the expected value of legislating
with two chambers over legislatingwith one chamber is:
(APP. 8)
(0.46)(0.436)P = 0.2P.
In this stylized example, the marginal 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 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 regarding the state of the world the conference observes is the same as that
observed by the second chamber, m' = b. From Table 5, q = pr(mc =
b) = 0.543. From Table 6, the expected gain from adopting B given
that 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 from
adopting B given that (m", M 2 , M) = (a, b, b) discounted by the probability that the second chamber and the conference actually observe
1999]
UNICAMERAL LEGISLATIVE SYSTEMS
"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 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 28.5 percent.
Now consider the case in which the first/unicameral chamber is
2
actually better informed than the second chamber, q" = 0.7, q = 0.6, q'
= 0.7. The existence of a second chamber is still informationally productive, 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 conference committee observe "b." In this stylized example, the marginal 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.
120
CREIGHTON LAW REVIEW
[Vol. 33