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Rethinking the Presumption of Constitutionality


F. Andrew Hessick


University of Utah - S.J. Quinney College of Law

September 28, 2009

Notre Dame Law Review, Vol. 85, 2010

Abstract:     
One of the judiciary’s self imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature’s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations.

Number of Pages in PDF File: 58

Keywords: judicial review, constitution, rational basis test, presumption, legislative interpretation, presumption of constitutionality

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Date posted: September 29, 2009  

Suggested Citation

Hessick, F. Andrew, Rethinking the Presumption of Constitutionality (September 28, 2009). Notre Dame Law Review, Vol. 85, 2010. Available at SSRN: http://ssrn.com/abstract=1479784

Contact Information

F. Andrew Hessick (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
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