The Volokh Conspiracy

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

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


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.