At the Federalist Society’s national student symposium one year ago, I took part in a debate with Arizona supreme court justice Clint Bolick over the nature of the judicial power. The Harvard Journal of Law & Public Policy has now published my remarks under the title “The Presumption of Constitutionality.” My opening paragraphs:
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.” 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. Chief Justice Marshall’s exposition of judicial review in Marbury v. Madison closely tracks Hamilton’s reasoning.
And my closing paragraph:
I suspect that many of those who want to destigmatize or redefine judicial activism do so for the same reason that arsonists would be happy to have the word “arson” disappear or be redefined. If “arson” were simply referred to as “fire-building,” or if all legitimate fire-building would henceforth be called “arson,” the term “arson” would lose the stigma that it has earned, and life would be much easier for arsonists. I do not think that is something we should encourage.
Justice Bolick has published his side of the debate under the title “The Proper Role of ‘Judicial Activism.’”