Interesting new article from Professor Hessick of Arizona State on the Presumption of Constitutionality, scheduled to be published in the Notre Dame Law Review. The abstract:
One of the judiciary’s self imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature’s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations.
I find it odd that the author cites Randy Barnett’s work only 3 times in footnotes. Professor Barnett’s Restoring the Lost Constitution, The Presumption of Liberty explains at great lengths why the Constitution calls for a reversal of the presumption of constitutionality, and demands, in certain cases, a presumption of liberty.
I’ll be attending a conference at Arizona State Law School in a few weeks. Perhaps Professor Hessick will be around. But I look forward to reading it.
H/T Legal Theory Blog