Presumption of constitutionality
- Presumption of constitutionality
A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional.
This presumption has ancient roots. For example, Alexander Hamilton explained in 1788 that courts may only strike down a statute as unconstitutional if there is an "irreconcilable variance" between the statute and the Constitution. [Hamilton, Alexander. [http://www.constitution.org/fed/federa78.htm Federalist #78] (1788-06-14).] Otherwise, a statute should be upheld.
Likewise, at the 1787 Philadelphia Convention, Virginia delegate George Mason said that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." [ [http://press-pubs.uchicago.edu/founders/documents/a1_7_2-3s4.html "Founders’ Constitution, Article 1, Section 7, Clauses 2 and 3"] , Records of the Federal Convention (1787-06-04).]
Professor Randy Barnett argues that such a presumption is unfair, and suggests that government should be forced to prove that laws violating liberty are necessary and proper, in what he calls the "presumption of liberty". [Barnett, Randy. "" (Princeton University Press 2004).]
ee also
*Judicial review
*Judicial review in the United States
Footnotes
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2010.
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