By Ernst Freund1
Sec. 1. introduction. - Sec. 2. legislative practice as a constructive factor. - Sec. 3. increased executive participation in american legislation. - Sec. 4. defects of american legislative procedure. - Sec. 5. english private bill legislation. - Sec. 6. improvement of legislative procedure. - Sec. 7. jurisprudence as a constructive factor. - Sec. 8. source material.
When we think of legislation as a branch of jurisprudence amenable to controlling principles, we have in mind primarily the doctrines of our constitutional law under which statutes are judged by the courts as to their conformity to an overruling law. And it may be conceded that in the name of due process gross violations of principle in the enactment of statutes will be corrected. Very little reflection, however, must show that judicial control is incapable of producing adequate principles of legislation. In order to declare a
1 [Professor of law in the University of Chicago; member of the Illinois Commission on Uniform State Legislation; member of the American Bar Association Committee on Legislative Drafting; author of a treatise on "The Police Power."
This chapter is part of the author's forthcoming book on "Standards of American Legislation."-Ed.] statute unconstitutional, a court must be convinced that it falls below the minimum of admissible standards; but legislative standardization is not satisfied by a barely tolerable level of performance; it means the application of the best thought that can be given to the substance and technic of legislation. In the nature of things this cannot result from mere negation, but must be operative in the very process of making the law. A science of legislation can only be the product of constructive factors, and any effort to improve legislation must be directed to the task of discovering the best and most practical of these and developing their possibilities for good to the utmost.