Rethinking the Presumption of Constitutionality
F. Andrew Hessick III
Arizona State University - Sandra Day O'Connor College of Law
September 28, 2009
Notre Dame Law Review, Vol. 85, 2010
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 constitutionalityAccepted Paper Series
Date posted: September 29, 2009
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