Adjusting the Presumption of Constitutionality Based on Margin of Statutory Passage
Edward Caldwell Dawson
Louisiana State University- Paul M. Hebert Law Center
May 9, 2013
University of Pennsylvania Journal of Constitutional Law, Forthcoming
For much of its history, the Supreme Court applied a very strong presumption of constitutionality in favor of federal statutes, striking them down only if convinced the statute was unconstitutional beyond a reasonable doubt. In more modern cases, however; the Court affords only a much weaker “presumption of constitutionality” that is closer to a mere tiebreaker, does not apply to all constitutional challenges, and affords only factual, not interpretive deference. This Article argues for adjusting the presumption of constitutionality based on margin of statutory passage, and setting as the maximum the older, stronger beyond-rational-doubt presumption, (which the article calls “Thayerian,” because it was most famously described and endorsed by James Bradley Thayer in a seminal 1893 article). Adjusting the presumption based on margin of passage addresses the concerns behind the “counter-majoritarian difficulty.” It is supported by the Constitution’s own super-majoritarian structures and theorists’ arguments about the superiority of super-majority enactments. It would improve the Court’s legitimacy by making explicit and legitimate a basis of decision that has been perceived to have influenced the Court’s decision making in key cases. It would also be more objective than various theories advanced to allow the Court to accommodate popular will in constitutional interpretation, and would be easier to implement than legislative proposals made to “fix” the counter-majoritarian difficulty, because it can be implemented by the Court itself.
Number of Pages in PDF File: 65
Keywords: constitutional law, presumption of constitutionalityAccepted Paper Series
Date posted: June 27, 2013
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