Arizona Supreme Court Justice Clint Bolick, Writing Against the "Presumption of Constitutionality"

(Note the citation to, among others, our own Randy Barnett.)

|The Volokh Conspiracy |

Before being appointed to the Arizona Supreme Court, Justice Bolick had been one of the leading libertarian lawyers in the country (he cofounded the Institute for Justice); this is from his opinion today in State v. Arevalo, which was also joined by retired Justice John Pelander:

I join fully the Court's well-reasoned opinion. In addition to the substantive issues addressed by the Court, Arevalo made arguments regarding the proper application of the presumption of statutory constitutionality. I write separately because I would discard that presumption.

It is essential to our system of justice, and to its endurance, that every person enter the courtroom on a level playing field. Sometimes our rules of procedure provide a momentary advantage to one side or the other, but ideally the law is blind to the identity, power, and resources of the litigants.

All of that is represented by the most ubiquitous symbol of the American judicial system, the scales of justice. They are, by their nature and necessity, evenly balanced. But when a litigant, whether in a criminal or civil context, argues that a law that diminishes liberty is unconstitutional, the scales are tipped by the presumption of constitutionality in favor of the government. Although this presumption is deeply rooted in our jurisprudence, it is antithetical to the most fundamental of ideals: that our constitutions are intended primarily not to shelter government power, but to protect individual liberty.

Although Arizona courts adopted the presumption of constitutionality from federal jurisprudence, it is more pronounced here than at the national level. As this Court has applied it over the years, the presumption and the burden to overcome it can be heavy.

A constitutional attack upon a statute triggers several "cardinal rules." First, that the "[b]urden is on him who attacks constitutionality of legislation." Second, "[g]enerally, every legislative act is presumed to be constitutional and every intendment must be indulged in by the courts in favor of validity of such an act." Third, the Court "will not declare a legislative act unconstitutional unless satisfied beyond a reasonable doubt of its unconstitutionality." Indeed, an early decision went so far as to say that the burden on a party challenging the constitutionality of a statute is of "as great a weight of evidence and reasoning as would be required to be presented by the state to convict a defendant of murder."

This Court has recognized problems with the presumption over the years and has trimmed its sails a bit. For instance, the Court disapproved the "beyond a reasonable doubt" standard because "[d]etermining constitutionality is a question of law, which we review de novo," and this inquiry "fundamentally differs from determining the existence of historical facts, the determination of which is subject to deference." Likewise, the Court has declared that "if a law burdens fundamental rights, such as free speech or freedom of religion, any presumption in its favor falls away."

Despite that constructive step, the Court attached the presumption's application to a fundamental-rights rubric that is at once familiar, yet amorphous as to which side of the line a particular right resides. And although the Court held that the presumption should "fall away" in matters pertaining to such fundamental rights, it added that the presumption should remain intact when "the law in question touches only peripherally" on such rights. In this case, the Court does not confront those nuances, perhaps because it is not clear from this amorphous framework when the Court should place its thumb on the scale in favor of the government.

The rationale for the presumption of constitutionality is two-fold: that because other public officials have all taken an oath to the constitution, courts should assume as a matter of comity that they have acted in accordance with the oath; and that without such a presumption, courts might transgress upon the legislature's powers on the basis of policy disagreements. The United States Supreme Court has explained that "[a] decent respect for a co-ordinate branch of the government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligation of an oath of fidelity to the Constitution."

Similar rationales have informed Arizona jurisprudence. "The Arizona Legislature is vested with the legislative power of the state, and has plenary power to deal with any subject within the scope of civil government unless it is restrained by the provisions of the Constitution." Moreover, "questions of the wisdom, justice, policy or expediency of a statute are for the legislature alone."

I agree with the propositions expressed in [the preceding paragraph], but they do not support a presumption of constitutionality. Neither the federal nor state constitution suggests an elevation of legislative or executive power over individual rights. To the contrary, both constitutions establish the protection of individual rights as a core purpose. See, e.g., U.S. Const. Preamble (establishing the Constitution "to … secure the Blessings of Liberty to ourselves and our Posterity"); Ariz. Const. art. 2, § 2 ("[G]overnments … are established to protect and maintain individual rights."). Indeed, our constitutionally mandated separation of powers, proclaimed in article 3, "is part of an overall constitutional scheme to protect individual rights." These purposes, conjoined with express guarantees of individual rights in the Bill of Rights and Arizona's Declaration of Rights, undermine any notion that courts should presume that laws infringing individual rights are constitutional.

Indeed, the role of the independent judiciary in our constitutional system is to protect individual rights by ensuring that the political branches do not exceed their constitutionally assigned authority. As Alexander Hamilton explained in The Federalist, "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." Without the independent judgment of the judiciary, he declared, "all the reservations of particular rights or privileges would amount to nothing."

This view of the framers became the bulwark of American jurisprudence in Marbury v. Madison. There the Court famously declared that "it is emphatically the province and the duty of the judicial department to say what the law is," and thus the courts cannot simply "close their eyes" to laws that violate the Constitution. A contrary view of the judiciary's constitutional authority "would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits."

The role of judicial review articulated by Marbury leaves no room for the presumption that the legislature acts constitutionally. See, e.g., Gary Lawson, Thayer Versus Marshall, 88 Nw. U. L. Rev. 221, 224–25 (1993). It is true that members of all three branches take constitutional oaths and thereby are obliged to act constitutionally. But their respective roles require the courts to serve as the ultimate arbiter, especially when it comes to the legislative body, which by its nature advances the views of the majority and resolves competing interests. As James Madison remarked, "[i]t is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good." Moreover, he warned, "a body of men are unfit to be both judges and parties at the same time," yet legislators who enact laws "concerning the rights of large bodies of citizens" are "advocates and parties to the causes which they determine[.]"

Given the competing interests asserted in the legislative process, Madison proclaimed: "Justice ought to hold the balance between them." Specifically, "[t]he prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies," Madison argued, namely, "the body of the people, operating by the majority against the minorityThus, as this Court has recognized, "it is well settled that when one with standing challenges a duly enacted law on constitutional grounds, the judiciary is the department to resolve the issue even though promulgation and approval of statutes are constitutionally committed to the other two political branches."

We can preserve the broad authority conferred by the constitution upon the legislature without diminishing the essential role of the judiciary by strictly observing essential boundaries and limits on judicial authority, some of which are expressly recognized in the Court's opinion today. The courts should never substitute their policy judgments for those of the legislature, but instead should simply undertake the narrow task of determining whether the legislature acted within its constitutional authority. We should never rewrite laws or exercise legislative functions. See The Federalist No. 78 (Alexander Hamilton) ("[L]iberty can have nothing to fear from the judiciary alone but would have every thing to fear from its union with either of the other departments[.]"). And if a matter is constitutionally entrusted to another branch of government, we should refrain from intervening in its resolution. All of these are proper rules of judicial deference.

Similarly, as a matter of statutory interpretation, we should whenever possible avoid constructions that would render the legislature's handiwork unconstitutional. Whenever a court interprets any document, whether a contract or statute, we should disfavor "interpretations that would nullify the provision or the entire instrument." More specifically, we should avoid interpreting a statute in a way that places its constitutionality in doubt. That interpretative canon traces to the notion that "a legislature should not be presumed to be sailing close to the wind, so to speak—entering an area of questionable constitutionality without making that entrance utterly clear."

Although "that is today a dubious rationale," it is still the case that "courts should minimize the occasions on which they confront and perhaps contradict the legislative branch." By happy happenstance, interpreting a statute to avoid an unconstitutional effect is ordinarily an outcome that both parties should favor, as the challenger's constitutional rights are preserved while so too is the legislation.

But interpreting statutes to avoid constitutional problems when an equally plausible interpretation presents itself is different, by order of magnitude, from a presumption that a statute is constitutional. When a court defers to legislative judgments about the constitutionality of statutes, it abdicates its most essential constitutional duty. Indeed, the presumption of constitutionality is at war with de novo review, which we announce every time we decide a statute's constitutionality. De novo means "anew." Anew means "as if a new start were being made and without reference to or observance of past acts or actions." What we mean by de novo review, when coupled with a presumption of constitutionality, is that we disregard the reasoned legal judgment of the courts below, but we credit the legislature's self-interested determination of its own constitutional authority. That is not true de novo review, yet true de novo review is exactly what our constitutional duty requires.

The presumption of constitutionality is increasingly subject to critical judicial and scholarly reexamination. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 Notre Dame L. Rev. 1447 (2010); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 507 (1984) (presumption of constitutionality "seriously hampers the courts' accomplishment of what … the Washington Declaration [of Rights] defines as the fundamental purpose of our state's constitution and government: to protect and maintain individual rights").

Three members of the Texas Supreme Court recently questioned excessive judicial deference to legislative enactments in Patel v. Texas Department of Licensing and Regulation. The justices noted that "[a] pro-liberty presumption is … hardwired into the Texas Constitution," meaning that "Texans are thus presumptively free, and government must justify its deprivations." 469 S.W.3d 69, 93 (Tex. 2015) (Willett, J., concurring). The same is true under the Arizona Constitution. The Texas justices aptly observed that "[l]awmakers' policy-setting power is unrivaled—but it is not unlimited. Preeminence does not equal omnipotence. Politicians decide if laws pass, but courts decide if those laws pass muster." Citing The Federalist No. 10, these concurring justices observed that "when people, or branches of government, are free to judge their own actions, nothing is prohibited." Although "[t]he question for judges is not whether a law is sensible but whether it is constitutional," "we should be neutral arbiters, not bend-over-backwards advocates for the government."

What does the presumption of constitutionality mean in real life and real cases? It is hard to say. Is it mere verbiage that we recite to show we are appropriately constrained before we strike down a law? See, e.g., John D. Leshy, The Arizona State Constitution 119 (2d ed. 2013) (asserting that the Court has "overstate[d] the degree to which the judiciary defers to legislative judgments"). Or is it a significant weight on the scales of justice, which presents a real risk of sustaining unconstitutional laws because they do not meet the more exacting requirement of being "clearly" unconstitutional? Either way, the result is unsatisfying, yet sends an unmistakable message to Arizonans that they face a judicially manufactured uphill battle any time they challenge an infringement of their rights.

We should dispense with the presumption. Although deeply embedded in our jurisprudence, it should not continue to subordinate the essential role of the independent judiciary in protecting individual rights that was so central to our constitutional design. On this point our constitution furnishes the necessary counsel: "A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." Ariz. Const. art. 2, § 1.

 

NEXT: When a Killing Becomes a Rorschach Test: Dispatch From Portland

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This is garbage.

    The presumption of constitutionality arises from two places: (1) respect for the difficult, intensive work of legislatures; and (2) judicial humility.

    With respect to (1), judges like Justice Bolick have a ridiculously easy, cushy job. They read briefs and can pop off in their opinions. Yes, they have to form consensus (and in that regard, a 2 justice concurrence is, of course, an abject failure of Justice Bolic to do his job, not a success), but it’s far easier to form consensus among a small group of judges who adjudicate cases according to defined principles than it is to form consensus in a legislature full of a far larger number of vastly diverging personalities, with different political perspectives, and who also respond to citizens, lobbyists, moneyed interests, and the inertia of the status quo. Plus the governor or President has to sign the thing.

    So passing legislation is really really hard, and a court throwing all that hard work of the legislature away is really really easy. Which means courts ought not to do it very often.

    The other reason for the presumption is humility. Legislatures operate with the wisdom of crowds. (The voting public, with initiatives, really operates with the wisdom of crowds!) Legislatures also have a committee system that allows them to both generate expertise themselves and hear from experts in the process. Legislatures are also elected in contested elections where policies are debated, so they reflect to some extent the views of their constitutents as well.

    Judges are individuals. Some of them are really smart, and some of them merely think they are really smart. But they are generalists, and they are also governed by an ethos of independence from the populace. That’s great when they are judging. But it’s not so great when the are legislating.

    A presumption of constitutionality is absolutely necessary given those truths.

    1. Let’s throw a pity party for the poor politicians.

      Characterizing the wheeling and dealing of solons as “all that hard work” mortally wounds your post.

      Your failure to acknowledge that the legislative process is fraught with bribery, careerism, communism, contempt, corporate capture, greed, fraud, hubris, incompetence, ineptitude, a lack of intellectual rigor, mendacity, misinformation, socialism, and a thirst for a fat sinecure, is also fatal to your post.

      1. Characterizing the wheeling and dealing of solons as “all that hard work” mortally wounds your post.

        It is 400 times harder to write a statute that passes and gets signed than it is to write a judicial opinion.

        And yes, I acknowledge all the problems with legislation. But you know what? All those things make it harder, not easier, to pass anything.

        The reality is if some self-important judges strike something down, it may be 10 years before a new statute can get through the legislature.

        1. The task of passing a law among a large group… sure. That’s tough. But it being tough does not necessitate that the result is also bound by limits on the groups power. Two groups who both wish to violate the rights of the people may struggle to reach compromise. That they do simply means that it was harder to violate rights, not that rights weren’t violated.

          1. Nobody doubts there are limits on the legislative power. It isn’t a conclusive presumption of constitutionality. It’s just a tie-breaker.

        2. Do you know how hard it is to be a good burglar, serial killer, cannibal? The Unabomber put a lot of effort into his work and eluded the police for a long time.

          George Wallace worke dimmensely hard at being a segregationist.

          Should we bring in Hitler, Stalin, and Mao?

          What does “hard work” have to do with justifying the result? You sound like you’re trying to regurgitate Marx’s labor theory of value.

        3. “it may be 10 years before a new statute can get through the legislature.”

          Oh no?

          It’s supposed to be really hard to pass new laws, because the growth of the state is the foremost danger to liberty. And while congress people take an oath to the constitution, most of them are not experts on what the constitution requires. No deference on constitutionality is due to them.

          Judges and constitutional lawyers are supposed to be the experts on the constitution, and court is where they have their say.

          1. You can certainly argue that it is supposed to be hard to pass laws. But it isn’t supposed to be hard to pass laws because judges are going to constantly strike them down.

            1. If they’re striking them down, it’s because they’re laws Congress didn’t have the power to do in the first place. The constitution is a document of limited powers – if Congress excedes its powers, it’s not the judges’ fault, it’s Congress’s.

              1. Unconstitutionality isn’t a bright line. There are many cases where it is debatable. The presumption protects legislatures from judges who would exploit that fuzzy line to undue their hard work.

                1. So Congress can exploit fuzzy areas against the citizens?

                  I’d rather see 10 questionably constitutional laws struck down than 1 unconstitutional law fail to be struck down. Because it’s the individual citizens who are burdened by the unconstitutional laws that judges won’t properly evaluate in your world. It would be far better if legislatures would get repeatedly slapped down for passing laws in those fuzzy areas, and would learn to avoid legislating in those areas at all.

                  (The amount of work, or lack thereof, that goes into the law is irrelevant.)

                  1. Congress is elected by the citizens.

                    1. So a majority can elect a congress that can exploit fuzzy areas to oppress minorities they dislike. That sounds like a wonderful system…

                      Individuals need protection from the state. Elections do not magically stop the elected from harming individuals.

      2. “Your failure to acknowledge that the legislative process is fraught with bribery, careerism, communism, contempt, corporate capture, greed, fraud, hubris, incompetence, ineptitude, a lack of intellectual rigor, mendacity, misinformation, socialism, and a thirst for a fat sinecure, is also fatal to your post.”
        Yeah, because, you know, judges are immune to all of that. They are super-special people. For example, no judge has ever been bribed. No judge has ever been incompetent, inept, or lacking in intellectual rigor. All judges are scrupulously honest and exceedingly lacking in hubris. No judge has ever taken a job as a judge to get away from the hard work of lawyering.

    2. “respect for the difficult, intensive work of legislatures”

      You must be joking, but I suspect you are not. You really do think legislators are good people.

      They are not. They are scoundrels from one side to the other. Their sole purpose is to get re-elected and help those who think alike. They have no more interest in principles than flatworms.

      None of this should need be said. Anyone with half a brain should be able to find daily reminders of the crap legislation this country is encumbered with. The passive disinterest in reining in civil asset forfeiture and qualified immunity, the active creation of the war on drugs, the partisan impeachments of Clinton and Trump.

      Try a little harder, first to think, second to think again. If you had any logic behind such a stupendous burp of nonsense, it was not apparent.

      1. They definitely want to get reelected. The funny thing is you don’t understand that notion is also known as “democratic accountability”.

        1. Sure it’s “known as” your appropriately-scare-quoted phrase. The funny thing is you think the name is the same as the substance.

        2. “he funny thing is you don’t understand that notion is also known as “democratic accountability”.”

          If this were true, either approval ratings would be much higher, or there would be far fewer senators with 30+ years of “service”.

          How much accountability is there when some districts nearly always run unopposed? Is that because the senator is really that good (lol, right), or because it’s nearly impossible (especially in some areas of the country) for someone who isn’t independently wealthy to unseat the incumbent, or for someone not “my team” to win?

          1. If you want to argue gerrymandering and advantages of incumbency interfere with democratic accountability you can- but I hardly see how that would be mitigated by judges striking down more laws. Indeed, the judges pushing for this are not exactly fans of John Hart Ely and other scholars who might argue that courts have some role in pushing the law in more DEMOCRATIC directions. They want to strike down laws that ARE popular.

    3. Even assuming your assertions are correct, just because the legislature “works hard” to craft a piece of legislation does not mean the end product satisfies the standards of the Constitution.

      Good grief, no wonder the republic is falling apart

      1. Again, it’s not a conclusive presumption. It’s just a presumption.

      2. The republic is not falling apart. It is shaking off some vestigial bigotry and other obsolete thinking, and continues to wrestle with problems involving can’t-keep-up communities, but America will continue to improve.

    4. Wow! It’s Graham v. O’Connor, but for legislators!

    5. “The presumption of constitutionality arises from two places: (1) respect for the difficult, intensive work of legislatures; and (2) judicial humility.”

      Maybe they’d be less overworked if we asked them to note the source of the authority that they are attempting to exercise when they exercise it.

      As it stands, they enact complex public policy and then hope that courts find that they have the authority to enact the policy.

      But without a presumption of constitutionality, Legislators would have to say, “Here’s what we’re doing, here’s where we get the authority to do it.” Sounds like less work for everybody.

      But I suppose lawyers wouldn’t like that.

  2. Many years ago, in support of my client’s effort to void Massachusetts’ alimony statute, I argued that the presumption of constitutionality was, itself, unconstitutional and utterly incompatible with natural law and the principles undergirding the Unanimous Declaration.

    The presumption of constitutionality is a product of judicial activism. Neither the Unanimous Declaration nor the federal constitution authorizes a court to concoct a doctrine blessing a statute with the imprimatur of constitutionality.

    Like Bolick, I quoted Randy in my brief, at the probate court, but not, in my appellate brief.

    1. 1. There’s no such thing as “natural law”.

      2. The presumption is a principle of judicial RESTRAINT. Randy Barnett is a judicial activist extraordinaire. Indeed, he would admit to it.

      1. Too bad you only apply your idea of restraint to the judiciary, not the legislature or executive.

        Wouldn’t it be nice if we *did* have an activist judiciary which considered enforcing restraint on the legislature and executive? What a concept!

        1. The legislature is the elected, representative body charged with policymaking. That gives them a mandate to act in a less restrained manner.

          1. Mandate my ass! The whole point of the Constitution is to prevent the tyranny of the majority.

            Human rights have no meaning to you; you bragged about that in a different comment. Who are your heroes — Lenin, Stalin, Hitler, Mao? They too had no use for human rights or Constitutional limits.

            1. The Constitution was written by people who had no problem with tyranny over Blacks and Indians. I don’t particularly care what they claimed to have thought about rights.

              Human rights have plenty of meaning to me, which is why I want governments to respect them. But one of those human rights is the right to choose representatives to enact policies on the public’s behalf. That is a really important one, actually.

              1. “But one of those human rights is the right to choose representatives to enact policies on the public’s behalf.”

                Hmmm. What are the parameters of this right? Do the people of the United States have a greater right to choose representatives than the people of North America? Or the people of the whole world?

                1. That right isn’t honored in some places.

  3. This is a good argument against presumptions of constitutionality, but it does not go far enough. If the citizen is sovereign, if the establishment of any state is an exercise of consent by a citizen, and if the sole purpose of the construction of a government is to protect at all costs the rights of citizens (to view this last task any differently would by necessity require you to void the idea of rights and replace with an idea of privileges)… then in every and all cases the citizen must always be given the benefit of the doubt in any contest against the state. Every action of the state is universally bound and limited by the existence of rights. As such, when someone says that their rights have been violated by an act of the state, regardless of being done by an actor (like police) or by statue (by a legislature) then it is incumbent upon the state to prove their case, just as if they were seeking to impose some limits to the rights of an accused person via a conviction. ALL state action is either clearly in accordance with upholding rights, or should be suspect of violating rights. There is no danger to our system or way of life, if we do indeed build it upon the idea of rights, to view the state with such distrust in all ways.

    1. The citizen is not sovereign. There are plenty of people who have asserted “popular sovereignty” and who rot in jail, because the real sovereign arrested them.

      1. If I am not allowed to grant consent on my behalf, I am not free. If I CAN grant consent then I am, indeed, sovereign over myself. And if I am sovereign over myself, then I am able to do as I wish within the constraints of the existence of other sovereigns and their rights… this is liberty. What you described is not justice or moral standing, but simply force. I do not disagree that force makes what is. But I do not believe it is what makes that which is right.

        1. Self-ownership must be applied with restraint, subject to the non-restrained legislature and executive, who are subject to democratic accountability — but only with restraint. Only legislatures and executives have the wisdom to use their unrestrained power gracefully and without restraint from activist judges and self-owning citizens government-owned slaves.

      2. And even if you were to remove that single line… the rest still stands.

      3. Wait, didn’t you say something about democratic accountability just a few comments above?

        Guess that’s just a figure of speech, applied with appropriate restraint.

        1. Democratic accountability != citizen sovereignty.

            1. Oooh, two votes! Majority wins, right?

            2. Yeah, I’m right there with you on this one Dilan. And I’m pretty sure I learned judicial humility on this blog.

              It was the consensus position until the late 2000’s or so.
              Funny how quickly positions can change.

      4. The individual most certainly is sovereign.

        That a government has by force deprived an individual of his rights in no way negates the existence of those rights, it only demonstrates that the government has access to means that are more powerful than an individual. The rights still exist, they are simply being violated.

        It is no different than if I am accosted by a robber. That a robber may able to overpower me in no way negates that I am the sovereign over my own body and that I have a right to have it be free of unprovoked assault. Though the robber may have proven mightier than I, the right exists and the robber has violated it.

        1. The government- with its police, court systems, military, legislature, etc.- is a precondition to you having rights in any meaningful sense. I mean, obviously, you can in theory talk about your right to own land in a state of nature, but if someone more powerful than you comes to kick you off of it, they can.

          The concept of a “robber” only makes any sense within a framework of rights guaranteed by the actual sovereign, the government. Without that sovereign, you can call someone a robber all you want, but if he or she is more powerful than you, you aren’t getting any redress for the theft.

          1. By this reasoning, there was nothing wrong with slavery because the government endorsed the institution.

            1. Exactly
              That the real sovereign decreed “these people have no rights” did not make it true. The right to exercise sovereignty over their bodies did indeed exist and the so-called real sovereign enabled the violating of their rights.

              I think Frederick Douglass had a good understanding as to whether or not his rights always existed and were being violated, or only sprang into existence upon his being able to flee the man who called himself Douglass’ owner.

              In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner.

              1. Frederick Douglass was a wonderful human being. He was also engaging in rhetoric when he said these things about the law and the Constitution.

                In reality, there were many courageous Americans fighting slavery. But when Blacks actually went to court, they were met with the Dred Scott decision, which held they had no constitutional rights. A war had to be fought and the Constitution amended.

                1. I thought you hated activist courts.

            2. 1. Where did I say anything about morality?

              2. Slavery was a reality. Which is why it took a bloody civil war to end it.

          2. This is nonsense. Rights exist before government. Our founding fathers knew this and made it explicit. Governments are instituted among men to secure liberty, not to create it.

            And the government has rules it has to follow. Those rules for our government is the Constitution (and for the states, their individual constitutions). If they take action outside those explicitly granted powers, those actions are unlawful and deserve censure – the fact that they employ the police and the military doesn’t give them the power to ignore those limits.

            You’re also wrong as a matter of historical record on government being a precondition of these things. The American West, the real one, not the hollywood version, wasn’t some dystopian nightmare. In the absence of any government presence, private citizens created and enforced contracts amongst themselves. See, for example, the work of Anderson and Hill at Montana State, such as: https://mises.org/library/american-experiment-anarcho-capitalism-not-so-wild-wild-west

            1. Our founding fathers didn’t believe any of the crap they said. Ask the Blacks if they had any due process when the founding fathers raped them after attending the constitutional conventions.

              But anyone who DOES believe in natural rights is being silly. As I said, without the government to protect and enforce them, your rights mean nothing.

        2. How are we supposed to know what is, and is not a right?

  4. Sorry, constitutions are simply not there primarily to protect individual liberty. The idea that linerty trumps everything else is a political idea, not a constitutional one.

    It’s just as illegitimate as a communist saying the constitution primarily protects the good of the community (as the judge sees it) and then saying anything that goes against that good should be presumed unconstitutional.

    Making a judge’s single personal ideological and political value the trumping one goes against everything a constitution is supposed to be about. A constitution exists to create a legitimate way to balance competing values while preserving the peace.

    1. Constitutions on their own… you are correct. They are nothing more than the “instructions” to build and the “rule book” to follow of a government. They can create a government for any number of reasons or goals. But OUR Constitution is very much designed for the particular purpose of protecting individual liberty.

      1. Our Constitution was actually designed to protect the institution of slavery. Which is… shall we say… rather antithetical to the concept of human rights.

        1. It decidedly was NOT created to preserve slavery. That it did preserve it was a bargain with the devil in order to gain enough support, per the agreement for the rules of adoption, to enact the thing. But its reason for existence was explicitly and expressly designed for the preservation of an individual’s rights. Some certainly treated it like you seem to… merely words on paper. It was that mentality that led some to believe there was nothing wrong with slavery and that they were justified in perpetuating it via claims of legality. Others knew that the documents ideals were the death knell for slavery. Many writings from those involved expressed as much. That is why those in favor of slavery held the whole thing hostage until being granted concessions for slavery. The 3/5 Compromise is a very tangible example of how there was not one monolithic faction seeking to keep slavery in perpetuity but that it was a heavily disputed topic. Those who wished to see it end were faced with two choices… not agree with slavery and risk being disunited under threat of a British take over OR accept it for now and with expressed desires to end it as soon as possible (which again had to be fought off by slavers with a demand for a time restraint on issues of slavery) in exchange for a real chance to secure a new system that they knew could not tolerate slavery forever. We can argue on if they made the right choice. I am torn. But to simply paint the founding as an attempt to maintain slavery and facing no opposing to such an end is pure BS.

          1. Of course it waa designed to protect slavery. It has several provisions whose point was to ensure the permanancy of the slave power.

            Obviously the framers didn’t admit this for the same reasons the Germans covered up the Holocaust. But that was the point of what they were doing- slavery was a dealbreaker and a precondition for the founding of this country. It was made clear that any sort of abolition was off the table.

    2. “Sorry, constitutions are simply not there primarily to protect individual liberty. The idea that linerty trumps everything else is a political idea, not a constitutional one.”

      “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…” –Declaration of Independence

      “We the People of the United States, in Order to … secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” –Preamble to the Constitution

      (There are other things in that ellipsis of important if not equal value, but securing liberty was definitely a primary aim. Not going to argue liberty trumps *everything*, but it certainly trumps the government acting in ways not explicitly sanctioned by the Constitution.)

      1. Ask the slaves if securing liberty was a primary aim.

    3. Very good. This post and comments is an important one for attitudes generally. Bolick is unmasking the lawlessness of the judiciary. When they want to, they presume constitutionality. When they don’t, they don’t. It’s fraud. And this is just what happens in Chevron deference too. Judges should not hide behind legal technicalities that they invent and ignore as desired. They should recognize that judges must never defer to the executive branch when interpreting *anything*, no more than to the legislative branch or to Eric Rasmusen, using all these people only as evidence and persuasive authority.

  5. Ironic that he would embrace the I-know-best philosophy of Lani Guinier, whose career he destroyed.

  6. For a “libertarian” champion, Justice Bolick seems to cite right-wingers to remarkable degree. His citations are to Republicans roughly as much as the Volokh Conspiracy is white and male.

    Probably just a curious coincidence?

  7. 1) Comments here are much higher quality AND more entertaining than those on Eugene’s recent Reparations post – thanks, keep that insight and wit coming.
    2) if Bolick’s view were adopted nationwide over the next few years, what (beyond a presumably huge, ongoing wave of striking down of laws) would result?

    1. I expect an increasing volume of reparations posts (and ‘poor, poor, persecuted white conservative males’ content in general) from the Volokh Conspiracy.

      1. To a dumb-ass hammer, everything is a white-power nail.

        1. Are you proposing a Volokh Conspiracy motto?

    2. 2) In the short-term, public opinion of courts would plummet to that of the legislature. In the long-term, nothing. The pendulum between judicial activism and judicial restraint is constantly swinging back and forth. Once the court recognizes the swing against judicial activism, they self-correct. We’d be back here.

  8. Whatever gods may be, protect us from judges who think they have theories. Nothing in the intellectually paltry bag of tricks we learn in law school, or the experiences we have as practicing lawyers, gives us any special insight into the kinds of questions our grand theorist judges (and their academic acolytes) so confidently answer. Adding Economics 101, some sophomore-level philosophy, and some tendentious catch-as-catch-can history to the mix doesn’t make us any better qualified.
    Give me a humble judicial hack any day, who doesn’t assume he or she is all that much smarter than a bunch of other judges who have puzzled over legal issues, and who doesn’t mistake what he or she finds in the Constitution with what he or she brings to it. We already have theology for that sort of thing.

    1. I agree with you to the extent that jurists make up rights that did not exist before. But there are parts of the Constitution that quite explicitly restrict what the Congress (or the states) may do. Someone has to interpret and apply them.
      If “Congress shall make no law . . . abridging the freedom of speech, or of the press” there has to be some mechanism to determine whether some act of Congress abridges those rights.

      1. I don’t think anyone here is arguing against judicial review. We are arguing in favor of limited judicial review.

        1. The article isn’t arguing for unrestricted judicial review but a recognition of the unfair position the current theory places the citizens and their rights in contrast to the very institutions who are supposed to be limited by these citizens and their rights. It isn’t saying that every law someone says is unconstitutional ought to be assumed unconstitutional to start. It is saying that there also ought not to be the opposite presumption. The burden always rests with the state in ALL cases in a system that takes the citizens as the most precious. Otherwise… why would a group of people construct a system and give it the power to essentially turn and enslave them? That literally makes zero sense but is exactly what has to he assumed if the courts start from the point of letting the state do what it wants save something so egregious that they can’t help but call it in question.

          1. There’s nothing unfair about saying that if you want to undue the work of democratic institutions, you have to prove your case.

          2. “The burden always rests with the state in ALL cases in a system that takes the citizens as the most precious.”

            No, the burden rests with the person making the claim that a law has been violated. Anyone claiming a constitutional affront has the burden to prove that the Constitution is what they say it is.

      2. You mean like an election?

  9. The problem with the presumption of Constitutionality is that it ignores the whole point of Constitutional provisions that restrict the legislature. The fact that they were passed by the people means they do not trust the political legislative process to protect their rights, so they wrote express restrictions into the Constitution.

    Alexander Hamilton did not want to pass the Bill of Rights, because he argued that the federal government was one of limited powers, and passing the Bill of Rights implies that everything not barred by them Congress may do. (Which is more or less where we are today.) But the People of the United States did not buy that argument. They did not trust Congress, so they passed restrictions on what Congress may do.

    The presumption of Constitutionality, IMO, goes against this history. If the People did not trust Congress, then why should the courts?
    (The same argument applies, mutatis mutandis, to state constitutional restrictions.)

    1. The problem with the presumption of Constitutionality is that it ignores the whole point of Constitutional provisions that restrict the legislature.

      That’s like saying the problem with the burden of proof in a breach of contract case is that it ignores the whole point of contract law.

      There’s nothing inconsistent with (1) believing that constitutional limits should be enforced and (2) putting the burden on the party trying to strike down a legislative act to overcome the presumption and show that this drastic act is justified.

      1. That is the same as saying there is nothing wrong with 1) believing that the state can’t violate rights of the accused and 2) trusting the state when they say they didn’t violate the rights of the accused and that the accused needs to prove innocence. If we trust the legislature why not the executive (and by extension the DA)?

      2. That’s like saying the problem with the burden of proof in a breach of contract case is that it ignores the whole point of contract law.

        I don’t agree that is a good analogy. In a breach of contract case, the burden of proof relates to factual issues — is there a contract, and did the other side breach it. In Constitutional cases, the issue is one of law, what does the Constitutional provision mean, what does the challenged law mean, and do they conflict. On your analogy, the comparison would be interpretation of contractual terms in a breach of contract case. That is not governed by burden of proof, but other rules. (Such as ambiguity is construed against the drafter. Which everyone today contracts out of.)

        Second, there is a difference in relative power in legislative cases that is far greater than in most contract cases. Constitutional provisions by definition are anti-majoritarian; the concern is the majority will force something on a minority that infringes their rights. That is much less of an issue in contract cases. With rare exception, the contracting party always had the freedom to simply not have entered into the contract. The citizen does not have the option to not be bound by the law, unless he leaves the country and renounces his citizenship.

        1. But keeping with the contract analogy, there is typically a presumption against the party to a contract with a superior bargaining position. And that is partly because the party with the superior bargaining position was in a superior position to write the terms of the agreement. Thus, ambiguous terms can be interpreted against that party, because it was in their power to make them less ambiguous.

          1. I would say that a litigant who holds a sword of Damocles over the work of an entire legislature has the superior bargaining position.

    2. Alexander Hamilton supported the presumption of constitutionality.

    3. If the People did not trust Congress, then why should the courts?

      Because distrust of government—or of any of its branches—is the prerogative of the sovereign. The People are sovereign. The Courts are not sovereign. The People may choose to distrust the Congress, to distrust the Executive, or to distrust the Courts. None of those is empowered to distrust the People, when they act collectively to exercise their sovereignty. Judicial oversight of the constitutionality of laws is a proper function of the courts, but that oversight cannot be based on any premise that the People’s other branches of government, including the Congress, are not constitutionally legitimate.

      More generally, this is another among many VC threads which feature historical nonsense from libertarians. The modern libertarian concept of, “liberty,” has wandered far afield from the founders’ understanding of the word. To the founders, “liberty,” meant, first and foremost, the right of the people to be sovereign, and to constitute and operate self-government according to the People’s pleasure. That is stated explicitly in the Declaration of Independence, and famously echoed in the preamble of the Constitution. Yet libertarians routinely ignore that, and insist the contrary.

      Libertarians appear to cherish a general loathing of the notion of sovereignty. Libertarians try continuously to convince the world to read the nation’s founding documents as if they said popular sovereignty is not only no part of liberty, but actually inimical to it. As a matter of history, that is simply mistaken.

      Make no mistake. The founders were not strangers to the notions of individual rights and civil liberties. They cherished them. But probably no one among the leading founders would have joined modern libertarians in insisting that sovereignty of the People was inimical to liberty. On the contrary, the founders thought—and said explicitly—that popular sovereignty was the means of establishing and protecting all the other liberties which the founders obliged their government to respect and protect.

      1. “To the founders, “liberty,” meant, first and foremost, the right of the people to be sovereign, and to constitute and operate self-government according to the People’s pleasure. ”

        If that was the case, why did the foundere go out of their way to insulate the people from congress? Why have a senate? Why the electoral college system?

  10. Many, many years ago, when I was in law school, one of our state Supreme Court justices gave a speech. It concerned the Court’s creation of a right based on our state’s constitution. The Justice said that he had decided that the practice at issue was immoral and once he decided that, he had no trouble deciding it was unconstitutional. I looked around to see if anyone else was as shocked as I was by that confession. It seemed to me that not one person batted any eye at his statement.

  11. The presumption of constitutionality is simply a small piece of the larger problem of courts routinely treating government lawyers and litigators more favorably than they do other litigants. If I could figure out how to word it so that it would actually stick, I’d love to see a constitutional amendment requiring the courts to treat government litigators the same as they treat everybody else.

    I was involved in a case some years ago in which the state refused to comply with a court order to refuse a child to her parents. They disagreed with the judge so they just ignored the order. A week later, and while contempt proceedings were pending, the child died in the state’s custody, under circumstances that suggested she would still be alive had she been returned to her parents.

    If I ignored a court order and a child died as a result, I would expect to be jailed and disbarred. Which is what I would have done to the social workers and their counsel had I been the judge.
    Instead, the judge said that since the child was dead, the case was over, and dismissed all proceedings.

    And that’s the real root of the problem — judges who allow the state to get away with things nobody else would get away with.

    1. “And that’s the real root of the problem — judges who allow the state to get away with things nobody else would get away with.”

      That’s intentional. Separation of powers, respect for coordinate branches, etc. is baked into the Constitution. We could have had a different system in which the judiciary is a hostile overseer of Congress, passing on the constitutionality of all legislation before it passes. But we don’t.

      1. It would be a hostile overseer only to the extent that nobody likes being ordered by a court to do something. Otherwise, it’s simply requiring the state to follow the same laws that everybody else has to follow. If the legislature decides those laws are too onerous to follow, it can change them, but for both itself and everyone else.

        1. “…it’s simply requiring the state to follow the same laws that everybody else has to follow.”

          That’s not how the Constitution or laws work. Take your specific example of a child dying in the custody of the state. States enjoy sovereign immunity. It’s in the Constitution. It’s in state constitutions. You may not agree with the policy, but it doesn’t have anything to do with the presumption of constitutionality (discussed in the OP).

          I’m happy to have the argument for why the rules should be different for states and people. The state is the people. If we allowed lawsuits by bereaved parents against the state for anything and everything, there would scarcely be money left to build the road that the parents used to get to the courthouse in the first place. (Not that it would exist, either.) I don’t agree with all sovereign immunity, but I do believe the people retain sufficient sovereign to decide when it is best to cede that immunity to individuals and to the courts.

          1. First of all, I wasn’t even talking about sovereign immunity. I was talking about holding social workers who defy court orders in contempt and jailing them, which is pretty much what happens to anyone else who disregards court orders.

            Second, yes, I understand that that’s the way the system works. A Chinese government official, pressed about democracy and free speech, would also respond that that’s the way his system works. My point is that that’s not the way the system ought to work. If I have to obey court orders, so does the Department of Children and Family Services.

            1. “If I have to obey court orders, so does the Department of Children and Family Services.”

              That “likes ought to be treated alike” is tautological. It provides no substance. The purpose of the law is to draw distinctions between people and groups. Virtually all laws have this feature. I don’t know why the DCFS didn’t have to obey a court order. Maybe that’s a bad law. But it’s hardly unusual that implementation of the law treats X differently from Y. That’s the point!

              And do you support the inverse? The 14A is a law that applies to states. Do you think it ought to apply to you? Do you think the 1A should apply to posters on this forum? If I send you a Public Information Act Request, are you going to answer it?

              1. DCFS doesn’t have to obey court orders because it knows full well that judges won’t force them to. The first time a social worker actually does get jailed for contempt, that will change. It’s not that the law says they don’t have to; it’s that in practice, judges treat them differently than they treat other litigants. If I disobey a court order, I’ll get sanctioned; if DCFS disobeys a court order, it will suffer no ill effects. And I’m sorry, but I’m having trouble believing that you’re seriously defending that. It’s the functional equivalent of a parent having a favored child who doesn’t get disciplined even though the siblings all do.

                Up to a certain point the law draws distinctions between people and groups. A law against murder, for example, draws a distinction between people who murder and people who don’t. The first group can be sent to prison; the second can’t (assuming there’s no other reason to send them to prison.) But that’s not the same thing as telling two parties, who theoretically should be on equal footing before the court, that the rules only apply to one of them.

                1. It’s apparent to me that I thought you were talking about the presumption of constitutionality because I wasn’t reading your comment carefully enough, and now I see that you’re talking about something else.

                  “But that’s not the same thing as telling two parties, who theoretically should be on equal footing before the court, that the rules only apply to one of them.”

                  I frequently litigate against the state. The rules are (expressly) different for them than it is for us. As an example, the bases for 12(b)(1) motions to dismiss are broader for governmental entities than for private entities.

                  1. And I’m fine with differences in the procedural rules that take into account that, i.e., the government may need 60 days to respond to a complaint whereas other defendants only get 20. But that’s not what I’m talking about. What I’m talking about is judges refusing to enforce procedural rules (and substantive rules too) against the government. I was in a courtroom once waiting for my matter to be called, and the case ahead of me was a pro se plaintiff suing the state; the judge actually told him that she does not allow pro se plaintiffs to take discovery against the state.

                    Or, to give you another example, there’s a particularly awful case from the Central District of California in which the US Attorney’s office essentially admitted that it lied to the court because otherwise it would have lost the case. The judge issued an order that basically said don’t do it again. The judge refused, however, to set aside the judgement. That is not what would have happened if I had been caught lying to the court because it was the only way to win the case.

                    Or, for a third example, I once represented a criminal defendant who entered a plea agreement. The ink was barely dry on the agreement before the state breached it in such a way that made it next to impossible for him to comply with his part of it. Of course, when we went back to court for a violation of probation hearing, the judge didn’t care that the state had breached first, or that its breach made compliance significantly more difficult. That’s not the result when private parties breach contracts.

  12. Sorry, typed too fast. “the state refused to comply with a court order to RETURN a child to her parents.”

  13. “As Alexander Hamilton explained in The Federalist, “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Without the independent judgment of the judiciary, he declared, “all the reservations of particular rights or privileges would amount to nothing.””

    The very paragraph he’s quoting, from Federalist 78, contains the presumption of constitutionality. What does Judge Bolick think “irreconcilable variance between the two” means, except that courts should attempt to reconcile variance between the Constitution’s meaning and “the meaning of any particular act proceeding from the legislative body”?

    1. “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and .. nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

      1. Not inviting conflict between the federal judiciary on the one hand, and the ratifying states on the other, is another good reason for the presumption of constitutionality. There are several federal judicial doctrines birthed from it, including the Pullman doctrine, Buford/Thibodaux abstention, Colorado River abstention, etc.

        1. Sorry I meant to post that below, not as a reply to your post.

  14. The Constitution throws some bones to linertarians and sometimes adapts some libertarian principles, just as it sometimes adapts some socialist principles (e.g. promote the general walfare”), sometimes some principles from the Bible, etc.

    It’s understandable that the zealous libertarian, reading the constitution and seeing some libertarian principals, would perceive it as an essentially libertarian document. If we could just read between the lines and fill in the rest of the libertarian program, we would be doing what the constitution obviously intended.

    And this is just as understandable as it’s understandable that the socialist zealot or the religious zealot, reading the constitution, would feel that it is obviously intended to be an instrument of their respective programs, and filling in the rest would further its obvious purpose.

    But all three would be wrong.

    The fact that this blog has more libertarians than socialists or religious proponents means that readers of this blog are more likely to see things this way than to see things the socialist’s or the religious proponent’s way.

    But that’s an artifact of the reader, not the document.

  15. Pretty good comment, ReaderY.

Please to post comments