Presumption of constitutionality
Encyclopedia
A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional.
In Federalist 78, Alexander Hamilton
wrote that courts should only be able strike down a statute as unconstitutional if there is an "irreconcilable variance" between the statute and the Constitution. 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."
Professor Randy Barnett
argues that such a presumption is itself unconstitutional, 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".
In Federalist 78, Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
wrote that courts should only be able strike down a statute as unconstitutional if there is an "irreconcilable variance" between the statute and the Constitution. Otherwise, a statute should be upheld.
Likewise, at the 1787 Philadelphia Convention
Philadelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
, Virginia delegate George Mason
George Mason
George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
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."
Professor Randy Barnett
Randy Barnett
Randy E. Barnett is a lawyer, a law professor at Georgetown University Law Center, where he teaches constitutional law and contracts, and a legal theorist in the United States...
argues that such a presumption is itself unconstitutional, 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".
See also
- Judicial reviewJudicial reviewJudicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
- Judicial review in the United StatesJudicial review in the United StatesJudicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
- List of legal doctrines