“The Presumption of Constitutionality and Sterilization Legislation”

April 6th, 2012

Al Brophy writes about the Attorney General’s request that the courts adopt a presumption of constitutionality for the democratically-adopted ACA, and how this reminds him of the jurisprudence that approved of eugenic sterilization programs.

As I was reading General Holder’s letter to the Fifrth Circuit earlier today, I was struck by a parallel to some of the debate regarding sterilization legislation.  Holder remarked that “Acts of Congress are ‘presumptively constitutional,’ Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1301 (1993), and the Supreme Court stressed that the presumption of constitutionality accorded to Acts of Congress is ‘strong.’”  This is reminds me of an argument made — repeatedly — by advocates of sterilization that there should be deference (sometimes on the factual question of whether sterilization is a good way of limiting the burden on the public and at other times whether sterilization is a reasonable exercise of the police power).  Consider, for instance, the Virginia Law Review‘s discussion of the Virgina Supreme Court’s 1925 decision in Buck v. Bell.  It suggested (at 421) that great deference was due the legislature: “Every possible presumption is in favor of the validity of an act until overcome beyond rational doubt.”

I suspect Al would prefer a presumption of liberty in such cases.