The Presumption of Constitutionality.

• Date: 01 January 2019
• Author: Whelan, Edward

Justice Bolick and I have agreed to disagree as much as possible, so I'm going to do my best to live up to our agreement. Let me jump right into my core thesis.

A Justice may deem a statute to be unconstitutional only when, after careful analysis, the Justice determines that the statute clearly conflicts with the Constitution. A Justice may not deem a statute to be unconstitutional if the relevant constitutional provision, at the end of the analysis, has two or more plausible meanings and the statute is consistent with one of those plausible meanings. It's not enough, in other words, that the statute is inconsistent with what the Justice regards as the best reading of the constitutional provision. If there remains a plausible alternative reading that can be reconciled with the statute, the Justice must apply the statute.

This concept might fairly be labeled a "presumption of constitutionality." A statute, that is, is presumptively constitutional. That presumption may be rebutted, but only by showing that the statute clearly conflicts with the Constitution.

This principle has deep roots. Indeed, it inheres in the very foundation of what we call judicial review: the power or, perhaps better, the duty of federal courts to decline to apply statutes that violate the Constitution. In his justification of judicial review in Federalist 78, Alexander Hamilton explains that the Constitution is a "fundamental law" that, like any other law, judges must interpret in order to "ascertain its meaning." (1) In the event of what Hamilton calls an "irreconcilable variance" between the Constitution and an ordinary statute, judges need to apply the Constitution, the law of, as he puts it, "superior obligation and validity," in preference to the statute. (2) Chief Justice Marshall's exposition of judicial review in Marbury v. Madison (3) closely tracks Hamilton's reasoning.

Hamilton explains that the exercise of determining whether a statute clashes with the Constitution is akin to the ordinary judicial function of deciding which of two competing statutes trumps the other. As he puts it, "[s]o far as [those statutes] can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done." (4) Likewise, it is the obligation of judges to attempt, by any fair construction, to reconcile the Constitution with a statute that is alleged to violate it, and to decline to enforce the statute only when such reconciliation is not possible.

In perhaps his most famous passage, Hamilton again emphasizes that the exercise of judicial review to decline to apply a statute must involve a genuine repugnancy between the Constitution and the statute. "It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. .... [I]f they should be disposed to exercise WILL instead of JUDGMENT," by, for example, positing repugnancies that...