Suzanna Sherry

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Fordham Law Review

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Professor Waldron and Professor Michelman have presented us with two interesting, but very different, views on what procedural components might contribute to the integrity of lawmaking. I will focus on a different aspect of legislative integrity: legislation reflection. "Reflection" has two meanings, and in this context they are direct opposites. A legislature can be reflective as a mirror is reflective: It can be a reflection of its constituents and therefore a relatively direct agent of popular sovereignty. But reflective can also mean thoughtful and deliberative; a legislature that is reflective in this sense "reflects" or deliberates to reach its own views of appropriate legislation (although constituent views, of course, can be one factor in the deliberations). The bivalent meanings of reflection lurk beneath the surface of the papers by Professors Waldron and Michelman. Professor Waldron, for example, describes a truly deliberative legislature, and suggests that it can provide a model for the United States Congress. Professor Michelman is less certain that deliberation can ever produce consensus, or that legislative integrity can ensure legitimacy. Although neither directly discusses the question, it seems that both scholars would agree with me that only a deliberative legislature, and not a mirror-like one, affords sufficient protection of rights within an otherwise purely majoritarian regime. Where they differ, perhaps, is in their assessment of the capability of legislatures-or at least the Congress-to behave in a deliberative fashion.

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