Evan C. Zoldan (University of Toledo College of Law) has posted Reviving Legislative Generality on SSRN. Here is the abstract:
The Supreme Court does not recognize a constitutional principle disfavoring special legislation, that is, legislation that singles out identifiable individuals for benefits or harms that are not applied to the rest of the population. As a result, both Congress and state legislatures routinely enact special legislation despite the fact that it undermines the independence of the judiciary and has been linked to corruption. But the Court’s weak protections against special legislation, and the resulting harms, are not inevitable. Instead, special legislation can be limited by what may be called a value of legislative generality, that is, a principle that legislation should be disfavored as suspect simply because it singles out identifiable individuals for special treatment.
In this article, I argue that the value of legislative generality should be enforced as an independent constitutional principle. Three pillars – scholarship, history, and text – support the conclusion that legislative generality is a principle of constitutional significance. First, the pre-Constitution scholars most influential to the revolutionary generation articulated a value of legislative generality. Second, the history of the revolutionary period leading up to the framing of the Constitution suggests that a key purpose of the Constitution was to address evils associated with special legislation. Third, the text and structure of the Constitution delineate a norm of legislative generality. Together, this evidence supports the conclusion that legislative generality is a value with constitutional weight and suggests that current constitutional doctrine should be modified to give effect to this principle. I conclude by calling for heightened judicial scrutiny over special legislation that offends the value of legislative generality, including contemporary special legislation in the areas of immigration, public benefits, and criminal law.