'Unconstitutional Beyond a Reasonable Doubt' – A Misleading Mantra that Should Be Gone for Good

23 Pages Posted: 27 Apr 2021 Last revised: 29 Apr 2021

See all articles by Hugh D. Spitzer

Hugh D. Spitzer

University of Washington - School of Law

Date Written: April 20, 2021


For a century, Washington State Supreme Court opinions periodically have intoned that the body will not invalidate a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This odd declaration invokes an evidentiary standard of proof as a rule of decision for a legal question of constitutionality, and it confuses practitioners and the public alike. “Unconstitutional beyond a reasonable doubt” is not peculiar to Washington State. Indeed, it began appearing in state court decisions in the early nineteenth century and, rarely, in opinions of the United States Supreme Court. But the use of the phrase rapidly increased after an 1893 Harvard Law Review article by Professor James Bradley Thayer, who promoted it as a constitutional rule or standard because he wanted to reduce judicial rejection of progressive legislation. In Washington State, “unconstitutional beyond a reasonable doubt” increased steadily during and after the 1930s but remains controversial. In two opinions, Island County v. State in 1998, and School Districts’ Alliance v. State in 2010, members of the Washington State Supreme Court wrestled with whether it makes sense to invoke an evidentiary standard in constitutional dialogue. In Island County, some asserted that the declaration only meant the Court would not overrule the legislature unless the judges were fully convinced of unconstitutionality after a searching analysis. One called it “simply a hortatory expression” meant as a nod to elected lawmakers. In split School Districts’ Alliance opinions, a majority of the justices criticized the practice. This short Essay argues that “unconstitutional beyond a reasonable doubt” should be permanently erased from the Washington State Supreme Court’s vocabulary because it confuses people, is perhaps a bit disingenuous, and judges should say what they mean. Finally, the Court regularly uses other more workable standards, and those should replace “unconstitutional beyond a reasonable doubt” forever.

Keywords: judicial writing, legal rhetoric, constitutional standard of review, judicial review of statutes, state constitutional law

Suggested Citation

Spitzer, Hugh D., 'Unconstitutional Beyond a Reasonable Doubt' – A Misleading Mantra that Should Be Gone for Good (April 20, 2021). Washington Law Review Online, Vol. 96, p. 1 (2021), Available at SSRN: https://ssrn.com/abstract=3833095

Hugh D. Spitzer (Contact Author)

University of Washington - School of Law ( email )

Box 353020
Seattle, WA 98195-3020
United States
206-685-1635 (Phone)

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=470

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics