In
constitutional law
Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in fe ...
, the presumption of constitutionality is the legal principle that the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
should presume
statutes enacted by the legislature to be
constitutional
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these prin ...
, unless the law is clearly unconstitutional or a
fundamental right
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
is implicated.
[Gillian E. Metzger & Trevor W. Morrison, "The Presumption of Constitutionality and the Individual Mandate" in ''The Health Care Case: The Supreme Court's Decision and Its Implications'' (eds. Nathaniel Persily, Gillian E. Metzger & Trevor W. Morrison: Oxford University Press, 2013), p. 136.]
United States
In its strongest form—advocated most notably by
James Bradley Thayer
James Bradley Thayer (January 15, 1831 – February 14, 1902) was an American legal theorist and educator.
Life
Born at Haverhill, Massachusetts, he graduated from Harvard College in 1852, where he established the overcoat fund for needy under ...
—the presumption of constitutionality gives Congress, rather than the courts, the primary responsibility for interpreting the Constitution. This view is in tension with the view of
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
articulated in ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes t ...
'', however. Thus, a less strong form of the presumption, repeatedly articulated by the
Supreme Court of the United States, has become the dominant approach in American law: "
spect for a
coordinate branch of Government forbids striking down an
Act of Congress except upon a clear showing of unconstitutionality."
Constitutional law scholars
Gillian E. Metzger and
Trevor Morrison summarize this principle as follows: "although the Court's determination of constitutional invalidity always trumps the contrary judgment of a coordinate branch, the Court should not lightly arrive at such a determination."
The presumption of constitutionality is linked to the doctrine of
constitutional avoidance Constitutional avoidance is a legal doctrine in United States constitutional law that dictates that United States federal courts should refuse to rule on a constitutional issue if the case can be resolved without involving constitutionality. When a ...
(the doctrine that courts will not make rulings on constitutional issues if the case can be resolved on a non-constitutional basis) and the rule that courts will not
interpret an ambiguous statute to be unconstitutional in the absence of clear unconstitutionality.
The Supreme Court has held that statutes implicating certain fundamental
individual rights
Group rights, also known as collective rights, are rights held by a group '' qua'' a group rather than individually by its members; in contrast, individual rights are rights held by individual people; even if they are group-differentiated, which ...
are not subject to the general presumption, and are evaluated instead through
heightened levels of scrutiny. By contrast, economic legislation is subject to the presumption of constitutionality.
In
Federalist 78,
Alexander Hamilton wrote that courts should be able strike down a statute as unconstitutional only if there is an "irreconcilable variance" between the statute and the constitution. Otherwise, a statute should be upheld. Likewise, at the 1787
Philadelphia Convention
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention f ...
, Virginia delegate
George Mason
George Mason (October 7, 1792) was an American planter, politician, Founding Father, and delegate to the U.S. Constitutional Convention of 1787, one of the three delegates present who refused to sign the Constitution. His writings, including ...
said that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."
Professor
Randy Barnett
Randy Evan Barnett (born February 5, 1952) is an American legal scholar. He serves as the Patrick Hotung Professor of Constitutional Law at Georgetown University, where he teaches constitutional law and contracts, and is the director of the Georg ...
from Georgetown Law argues that such a presumption is itself unconstitutional and suggests that government should be forced to prove that laws that violate liberty are necessary, replacing the presumption of constitutionality with what he calls the "presumption of liberty."
Outside the United States
The presumption of constitutionality is part of the constitutional law of a number of nations outside the U.S., including the
Republic of Ireland
Ireland ( ga, Éire ), also known as the Republic of Ireland (), is a country in north-western Europe consisting of 26 of the 32 Counties of Ireland, counties of the island of Ireland. The capital and largest city is Dublin, on the eastern ...
and
Singapore
Singapore (), officially the Republic of Singapore, is a sovereign island country and city-state in maritime Southeast Asia. It lies about one degree of latitude () north of the equator, off the southern tip of the Malay Peninsula, bor ...
.
[Jack Tsen-Ta Lee, "Rethinking the Presumption of Constitutionality" in ''Constitutional Interpretation in Singapore: Theory and Practice'' (ed. Jaclyn L. Neo: Routledge, 2017).]
See also
*
Presumption of regularity The presumption of regularity is a presumption that forms part of the law of evidence of England and Wales.
It is expressed by the maxim of law ''omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium'', which may be shortene ...
*
Burden of persuasion
*
List of legal doctrines
*
Rational basis review
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendme ...
References
Legal doctrines and principles
Constitutional law