IF COURTS have the power to nullify unconstitutional laws, as argued in chapter 6, how much deference do judges owe to Congress in making this assessment? The Supreme Court has adopted a doctrine called “the presumption of constitutionality” by which acts of Congress are presumed constitutional unless shown to be in error. An early statement of this approach was offered by Justice Bushrod Washington—the same justice who endorsed the use of first principles in assessing the constitutionality of a statute: “It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt.”1
One of the most deferential versions of this presumption was offered by another justice willing to consider first principles, Justice Clarence Thomas, in the case of F.C.C. v. Beach Communications, Inc.,2 in which he wrote:
On rational-basis review, a classification in a statute … comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden “to negative every conceivable basis which might support it”.… Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.3
In other words, a statutory distinction is presumed constitutional if there is a conceivable basis for having made it regardless of whether this basis was relied upon by the legislature. This formulation of the presumption was too deferential for Justice Stevens, who replied: “In my view, this formulation sweeps too broadly, for it is difficult to imagine a legislative classification that could not be supported by a ‘reasonably conceivable state of facts.’ Judicial review under the ‘conceivable set of facts’ test is tantamount to no review at all.”4
As we shall see in the next two chapters, the commitment to the presumption of constitutionality has waxed and waned over the centuries, and is not without important—and revealing—exceptions. At this point, however, I want only to note that the presumption of constitutionality, in any form, is a construction rather than an interpretation of the text of the Constitution. Nowhere in the Constitution is it said, or even implied, that the judiciary must defer to or presume the correctness of the judgment of the legislative branch that a statute it enacts is constitutional.
That a doctrine such as the presumption of constitutionality results from construction rather than interpretation is hardly fatal, though it requires us to ask how it squares with the original meaning of the Constitution’s text. To answer this, we must consider its application to acts of Congress separately from how it applies to state legislation. To assess the merits of applying the presumption of constitutionality to federal laws, we must consider the original meaning of the provision of the Constitution that gives Congress the power
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
This we shall do in chapter 7. In chapter 8, we turn our attention to the appropriateness of deferring to state legislatures by considering the original meaning of the clause in the Constitution that commands that
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
Finally, in chapter 9 we shall see that the presumption of constitutionality runs afoul of the constitutional mandate of the Ninth Amendment that
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The original meaning of these nearly lost clauses argues strongly against a presumption of constitutionality and in favor of the contrary construction I describe in chapter 10: the Presumption of Liberty.
1 Ogden v. Saunders, 25 U.S (12 Wheat.) 213, 270 (1827).
2 508 U.S. 307 (1993).
3 Ibid., 314–15. (case citations omitted).
4 Ibid., 323 fn 3 (Justice Stevens, concurring).