James Huffman


For over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous constraints on the democratic excesses experienced during the period of the Articles of Confederation. Among those constitutional constraints is a Supreme Court with responsibility to safeguard liberty by assuring constitutional compliance by state governments and the other two branches of the national government.

Because the presumption requires that the government show only a rational basis for its actions, the Supreme Court has abandoned its deference to executive and legislative interpretations of the Constitution when confronted with what a majority of the justices consider to be particularly important rights claims, first in First Amendment cases and later where other rights are found to be fundamental or particular groups of people are affected. While this selective abandonment of the presumption of constitutionality reflects an acknowledgement of the libertarian foundations of the Constitution, the presumption remains the default, resulting in variable scrutiny of constitutional claims depending on the rights asserted and the individuals asserting those rights. This levels of scrutiny-hierarchy of rights and peoples approach requires courts to independently assess the importance of government actions relative to individual rights claims, thereby intruding on the policy making role of the legislative and executive branches while creating a hierarchy of rights and peoples. Because the Court has continued to presume the constitutionality of laws said to be adjusting the benefits and burdens of economic life, economic liberty claims are seldom successful. The overarching contention of this Article is that the Constitution allows for no hierarchy of rights or peoples and therefore requires a default presumption of unconstitutionality. The courts should strictly scrutinize every constitutional rights claim.



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