Presumption of Constitutionality

by Laurence J. Gillis, Sr. via Facebook
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THERE SHOULD BE NO “PRESUMPTION OF CONSTITUTIONALITY”:

When you take the government to court, remember that all laws and regulations are presumed by the court to be OK. This “thumb-on-the-scales” approach by the judges is not a good idea.

(In response to my artfully-phrased inquiry, “Copilot” came up with the following in 0.9 seconds)

đŸŸ„ 1. It flips the Constitution on its head

The Constitution is a charter of limits, not a permission slip. The government has enumerated powers, and everything else is reserved to the states or the people. A presumption of constitutionality reverses that logic by treating government action as valid unless citizens prove otherwise. That is the opposite of what a limited‑government framework requires. The burden should rest on the government, not the governed.

đŸŸ„ 2. It undermines judicial independence

Courts exist to check the political branches, not defer to them. When judges presume constitutionality, they effectively: (a) outsource constitutional interpretation to Congress, (b)

rubber‑stamp legislative preferences, and (c) weaken the separation of powers. Judicial review becomes judicial acquiescence.

đŸŸ„ 3. It incentivizes legislative overreach

If lawmakers know courts will give them the benefit of the doubt, they have every incentive to: (a) stretch the Commerce Clause, (b)

expand federal authority, (c) test the limits of police power, (c)

pass vague or sweeping statutes. The presumption becomes a blank check for creative constitutional evasion.

đŸŸ„ 4. It contradicts the original understanding of rights

Rights are pre‑existing; government is the intruder. A doctrine that presumes constitutionality treats rights as negotiable—something citizens must defend rather than something government must justify infringing. This is backwards. The Founders did not fight a revolution so that future courts could say, “Well, Congress probably meant well.”

đŸŸ„ 5. It erodes meaningful scrutiny

Even when courts claim to apply “strict scrutiny,” the presumption of constitutionality: (a) tilts the scale toward the state, (b) narrows the definition of “fundamental rights”, (c) expands the category of “legitimate government interests”, (c) The result is a jurisprudence where the government almost always wins unless the violation is egregious and obvious.

đŸŸ„ 6. It is incompatible with a government of limited powers

A limited government cannot be presumed to be acting within its limits. That’s like presuming a defendant innocent after the trial has begun but presuming him guilty before the evidence is heard. If the Constitution is to mean anything, courts must begin with a presumption of liberty, not a presumption of constitutionality.

đŸŸ„ 7. It weakens democratic accountability.

When courts defer, legislators avoid responsibility. They can pass expansive or constitutionally dubious laws knowing: (a) courts will likely uphold them, (b) voters won’t understand the constitutional stakes, (c) blame can be shifted to “the system”. The presumption shields lawmakers from the consequences of their own excesses.