In which the editors of The New Republic display the continuing indifference of the Left to the Constitution, if it inconveniently gets in the way of their totalitarian schemes.
5 thoughts on “The Presumption Of Constitutionality”
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The courts do have a presumption that laws are legal. They don’t make any decisions on laws before a suit appears in court. I’m no legal scholar so perhaps I am wrong.
The article argues that law should be presumed to be unconstitutional not that it is so treated.
Well, courts shouldn’t have a presumption that all laws are unconstitutional. That would require they get involved in the legislative process everytime a bill is passed. Possibly without anyone bringing a suit. Which would lead to even more judicial activism.
But the article stated that Obamacare defenders think the courts should not make judgements on the constitutionality of a law and not hear a case based on a presumption of constitutionality of a bill passed by congress, which is ludicrous. I’m merely pointing out that there is already a presuption of constitutionality because the courts wait for a suit to be brought before rendering judgement.
Once the case is before the court they should not be acting on any presumptions but decide each case on the merits of the arguments presented.
The New Republic had previously been arguing that Obamacare was supported by the Founders in their 1798 law setting up maritime hospitals, an argument that’s trivial to dimiss as incorrect (the 1798 law was a tax paid by ship owners engaged in foreign commerce and paid to the government, not a private transaction mandated on people not engaged in commerce). The argument citing the 1798 law was debunked years ago by Volokh, but TNR must’ve been too busy to read the Internet. For sound Constitutional legal reasoning, Vogue or Sports Illustrated are more reliable. At least if they approached a Constitutional issue in an article, they’d ask a lawyer for advice on the topic instead of presuming that the Constitution says want they want it to say.
Presumption of liberty is what Randy Barnett called it. We don’t have that but we should. The problem is elected servants that think they are our leaders.