Definition
To legislate is to make, enact, amend, or repeal law through the exercise of legislative authority. In constitutional systems, the act of legislating is the defining function of a legislature — the branch of government vested with lawmaking power. The term describes both the formal procedural act (passing a bill through the required constitutional steps) and, more broadly, the exercise of sovereign power to impose binding legal rules on a governed population.
Legislating is not a single act but a process: proposal, deliberation, passage, and (in most systems) presentment to an executive for approval or veto. The output of legislating is legislation — a statute, code, ordinance, or other enacted law.
Common Language
Modern common usage (Wiktionary): To pass laws, including the amending or repeal of existing laws.
Historical common usage (Webster's 1913): To make or enact a law or laws.
The common and legal meanings are close but not identical in one important respect. Ordinary usage treats legislating as a simple act of passing a law. Legal usage carries the additional weight of constitutional legitimacy — to legislate is to exercise a sovereign power that must be properly vested, properly delegated, and properly executed. A body that acts without legislative authority does not legislate in the legal sense; it acts ultra vires. The gap matters most when courts ask whether an agency, executive, or local body has "legislated" in a constitutionally impermissible way.
Common Confusion
LEGISLATE vs. REGULATE vs. ADJUDICATE: These three verbs map onto the tripartite separation of powers, and confusion among them drives much of administrative law. To legislate is to make general, prospective rules of law. To regulate, in the constitutional sense, is typically to administer or implement law already made — though in colloquial use "regulate" often substitutes for "legislate." To adjudicate is to apply law to a specific dispute or set of facts. The line between legislating and regulating is precisely what the nondelegation doctrine polices: when an agency makes rules so general and prospective in effect that they resemble legislation, courts ask whether Congress has impermissibly delegated the legislative function. The line between legislating and adjudicating is what due process vagueness doctrine polices: legislation that is too indefinite in scope begins to function like ad hoc adjudication.
Why It Matters in Research
The verb "legislate" appears throughout primary and secondary legal sources in ways that shift depending on context, and researchers should be alert to three distinct uses.
First, descriptive use: courts and commentators say a legislature "legislated" on a subject to mean it has occupied the field, which carries preemption implications in federal systems. Finding that Congress has or has not "legislated" in an area can be dispositive to a preemption argument.
Second, pejorative use in judicial opinions: courts accuse one another — and occasionally themselves — of "legislating from the bench" when they believe a decision has overstepped the judicial role into policy-making. This usage is rhetorical and not a technical legal finding, but it marks a fault line in separation-of-powers jurisprudence that runs through decades of case law.
Third, the constitutional boundary question: administrative law cases frequently turn on whether an agency has "legislated" without congressional authority. Researchers tracing nondelegation doctrine cases will encounter "legislate" as a term of art signaling that an agency rule has crossed from permissible rulemaking into impermissible lawmaking. The intelligible principle standard — the doctrinal test for permissible delegation — is directly concerned with how much of the legislative function Congress may hand off.
Researchers in historical sources should note that Anderson's entry focuses on the general/local distinction in legislation, which reflects a 19th-century preoccupation with special and private legislation. That concern — whether a legislature is making law for everyone or for a favored few — has diminished in the modern research context but reappears in state constitutional provisions prohibiting special legislation. Historical sources will not address the administrative law dimensions of the term, which developed primarily in the 20th century.
Historical Dictionary Support
Anderson's Dictionary of Law ties legislating directly to sovereignty — "to exercise sovereignty" — which reflects the 19th-century view that lawmaking power is an attribute of sovereign authority, not merely a procedural function. This framing is useful for understanding early constitutional cases that treated congressional power as plenary within its enumerated sphere.
Anderson's also draws the general/local distinction: general legislation applies to all the people of a state or union; local or special legislation applies to individuals or a section of country. The observation that private bills attract little attention and fail to excite discussion is a rare editorial aside in the source, but it reflects a genuine structural concern — special legislation historically escaped the deliberative scrutiny that general legislation received, a problem that motivated late 19th-century state constitutional reforms.
Webster's 1913 adds nothing legally operative beyond the common-meaning confirmation, though the illustrative quotation situates the term in the classical tradition of founding-era lawmaking, useful context for researchers working with early republic sources.
Neither Anderson's nor Webster's anticipates the administrative law dimension of the term — the question of delegated legislative power — which is the dominant research context in which "legislate" now carries legal weight.
Jurisdictional Note
The constitutional structure of legislating varies between federal and state systems and across common law and civil law traditions. In U.S. federal research, bicameralism and presentment are constitutional prerequisites; legislating without both steps is a nullity. State constitutions impose their own procedural requirements — single-subject rules, title requirements, supermajority thresholds — that can invalidate otherwise complete acts of legislation. Researchers working across jurisdictions should not assume that what counts as valid legislating in one system transfers to another.
Encyclopedia Cross-Reference
The Legislative Process — Bicameralism, Presentment, and the Veto (The Law Mind Constitutional Law Encyclopedia)
Delegation of Legislative Power — Nondelegation Doctrine and Intelligible Principle (The Law Mind Administrative Law & Government Encyclopedia)
Vagueness and Overbreadth — Due Process Limits on Legislation (The Law Mind Constitutional Law Encyclopedia)