Rethinking the Presumption of Constitutionality

58 Pages Posted: 29 Sep 2009  

F. Andrew Hessick

University of North Carolina (UNC) at Chapel Hill - School of Law

Date Written: September 28, 2009

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.

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

Suggested Citation

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

F. Andrew Hessick (Contact Author)

University of North Carolina (UNC) at Chapel Hill - School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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