This article analyzes the role played by facts in the process by which Congress makes law and the judiciary reviews those laws. Because little attention has been paid to this area by courts, Congress, and scholars, major federal legislation, including the Gun-Free School Zones Act of 1990, the Policy Concerning Homosexuality in the Armed Forces, and the Anti Car Theft Act of 1992, has been enacted without what the Supreme Court and some federal courts consider to be a proper factual foundation.
Requiring that Congress articulate a factual basis for its legislation encroaches on its lawmaking autonomy. Yet, insulating the legislature from judicial review is tantamount to demanding that the judiciary abdicate its role as protector of the Constitution. To mediate the power struggle between Congress and the judiciary, this Article uses as an example the Gun Free School Zones Act of 1990 and the Supreme Court's decision in United States v. Lopez, holding that Congress exceeded its Commerce Clause power in enacting that statute. The Article provides evaluative criteria with which to assess methods of providing a factual basis for legislation. By following these criteria, courts and Congress will moderate their respective functions while preserving the appropriate constitutional balance of power between the branches.
Wendy M. Rogovin,
The Politics of Facts: "The Illusion of Certainty",
46 Hastings L.J. 1723
Available at: https://repository.uchastings.edu/hastings_law_journal/vol46/iss6/2