What is Constitutional Fact?
1. Distinguished from Legislative Fact. One must distinguish constitutional fact doctrine in the sense of a standard of review from another common use of the term “constitutional fact” or “constitutional factfinding” as referring to the legislative facts that [*pg 1435] form the premises for constitutional rulings.37 An example of the latter can be seen in Lochner v. New York,38 where the Court based its finding of a right to contract in part on its view of the real world respective bargaining positions of management and labor.39 The terms “adjudicative fact” and “legislative fact” were introduced by Kenneth Culp Davis in his 1942 article, An Approach to Problems of Evidence in the Administrative Process.40 Professor Davis distinguished between “facts concerning immediate parties — what the parties did, what the circumstances were, what the background conditions were,” which he called adjudicative, and questions of policy, which he called legislative.41 He later refined this distincti
