It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [108]
The Court in Carolene Products summed up the shift to a presumption of constitutionality as follows:
The existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.
This presumption of constitutionality, however, was not to be limited to economic liberties, but was to be the norm; the burden would only shift in very limited circumstances—circumstances so limited that they did not warrant reference in the main body of the opinion, but merely a footnote. Those limited circumstances would be where the statute violates an express provision of the Constitution, where it infringes upon the workings of the political process, or targets discrete and insular minorities.
Later cases, such as Griswold v. Connecticut (1965), established that certain judicially hand-picked “unenumerated” rights would also be entitled to similar treatment. In that case, Justice Goldberg, in his concurrence, noted that there was a “right of marital privacy,” which extended far enough to protect the decision to take contraceptives, and sufficient to force the government to prove its case criminalizing the use of contraceptives.
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Related to this burden of proof—the legal obligation of producing evidence and making a persuasive argument to a court—was what the individual actually needed to prove to demonstrate that legislation was unconstitutional. In the Carolene Products case, the Court stated that the individual challenging the law must demonstrate that there could be no rational basis for the statute; a legal element which has proven itself to be nearly impossible to satisfy. As for those limited, judicially determined circumstances where the burden shifts to the government, cases established that the state must have a compelling interest, and the means used to actuate that interest must be narrowly tailored so as to do the least amount of damage to fundamental liberties. This legal doctrine has resulted in a jumbled mess where racial affirmative action is scrutinized more closely than gender discrimination, and there is a fundamental right to take contraceptives, but not to establish paternity over a biological child. In essence, it is a system where recognized rights rest on tenuous legal grounds, and liberties on which our Constitution bases its legitimacy are only marginally protected.
The presumption of constitutionality is the central flaw of this entire system. It will be the individual who will have the burden of presenting that evidence. However, one must ask, Why should the individual have to present empirical data, rather than the governmental officials who gathered and relied upon that data in crafting policy? It is simply inefficient to place this burden on the individual; doing so is more burdensome. Might the government have advanced and secured the presumption of constitutionality—and the concomitant burden of disproving it upon the persons whose liberties the government has violated—in order to assure its maintenance and possession of its coercive powers? In a word: Yes. Thus, because the individual has inadequate access to information, it increases the chance that he will lose even where that evidence clearly and convincingly shows that the statute was unconstitutional.
As a simple matter of fundamental fairness, shouldn’t it be the one who encroaches upon liberty who has to show why he is justified in doing so? Certainly,