Essay by David A. Marcello
A vast amount of legal scholarship on legislation examines the “outer boundaries” of the process—judicial approaches to the interpretation of statutes or constitutional constraints applied by courts to limit the exercise of legislative power. Another substantial body of literature (inclusive of “public choice”) deals with theoretical and empirical explanations of motivation and behavior within the legislative process by legislators, interest groups, bureaucrats, and voters.
Little attention has been devoted to legislation's point of origin—the legislative drafting process. Such commentary as has been offered is essentially technical in nature—what goes into producing a well-crafted draft of legislation.
This Essay goes to the heart of the legislative drafting process and treats the relationship between drafter and text as the furthest thing from a technical, value-neutralenterprise. Its thesis is that legislative drafting is inherently political, that it inescapably demands policy choices by drafters, and that no legislative drafter can fully escape the ethical and political implications of the task.
Most commentators would readily acknowledge that the expression of legislative intent by lawmakers and the interpretation of statutes by judges are intensely subjective, “political” influences on the legislative process. However, few acknowledge the legislative drafter as an important policymaker in the process by which society's laws are enacted.
Instead of discounting drafting as an inconsequential, essentially technical component of the legislative process, this Essay examines how substantially legislative drafters influence the shape and substance of legislation through the performance of their drafting tasks. In so doing, it seeks to enlighten drafters' understanding of their policymaking potential and to assist them in preserving for the client as many policymaking decisions as possible.
About the Author
David A. Marcello. Executive Director, The Public Law Center, New Orleans, Louisiana; B.A. 1968, Williams College; J.D. 1971, Tulane Law School.
Citation
70 Tul. L. Rev. 2437 (1996)