VOLUME 170, ISSUE 4 March 2022

In contemporary rights jurisprudence and theory, the Fourteenth Amendment and the Federal Bill of Rights are most frequently conceptualized as bulwarks against majoritarian abuses. From Brown v. Board of Education to Obergefell v. Hodges and even District of Columbia v. Heller, federal rights are primarily understood as enforceable legal constraints on popular majorities (especially intrastate majorities). Viewed through this lens, state constitutional rights are often dismissed as fundamentally dysfunctional because they are too easily amended through majoritarian political processes to constrain popular majorities. After all, what good is a state constitutional right to marriage equality, for example, if it can be quickly eliminated by a majority vote?

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. After all, it’s been forty-seven years since the common law pedigree of evidence law came to an end in the United States. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress assumed responsibility for regulating our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code. And as with other transitions to positive law, perhaps that shift inherently suggested that the Federal Rules of Evidence are “not a living organism” but simply a “legal document” that “says what it says and doesn’t say what it doesn’t say.”

In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.”