Arizona Supreme Court Justice Clint Bolick, Writing Against the “Presumption of Constitutionality”
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 con
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