Between Facts and Norms - Contributions to a ... - Blogs Unpad

276---· · ---Chapter 6nating classifications" on the grounds that the legislature omitteda "reasonable analysis" of the material in need of regulation.Generalizing from these cases, Sunstein arrives at a "reasonedanalysis requirement" geared to the discursive mode of the legislativeprocess: "What emerges is a jurisprudence that inspects legislationto determine whether representatives have attempted to actdeliberatively."67 The standard of judgment is the discursive characterof opinion- and will-formation, in particular the questionwhether the legislative decision turned on reasons that can bepublicly advocated or on private interests that cannot be declaredin the framework of parliamentary negotiations: "One of thedistinctive features of this approach is that the outcome of thelegislative process becomes secondary. What is important is whetherit is deliberation-undistorted by private power-that gave rise tothat outcome."68 This approach has the advantage that the Court,which does not have control over the justifying political reasons,does not have to refer to hypothetically ascribed reasons but canrely on the reasons that were actually brought forth. If one shouldobject that retrospectively attributed or conjectured reasons shouldalso suffice to justify a statute when the legislature's decisions wereactually determined by illegitimate social pressure, then Sunsteinhas a convincing reply: for the citizens themselves, it makes adifference, in normative terms, whether the legitimate policies andgoals that may require them to accept disadvantages are theoutcome of a legitimating, deliberative process or whether, on thecontrary, they merely emerge as side effects of programs andprocesses motivated by other, private concerns unfit for the purposesof public justification.The republican understanding of politics yields a more ambiguousanswer to the question of how aggressively the constitutionalcourt may encroach on legislative powers. According to Sunstein'sobservations, the Supreme Court brings the "reasoned analysisrequirement" to bear more strictly on disputed administrativemeasures than on legislative decisions. This restraint is justified ifthe rationality check refers not to the mode of the justificationprocess but to substantive reasons that are exposed as rhetoricalpretense. The Court may not arrogate to itself the role of anideology critic vis-a-vis the political legislature; it is exposed to the