Reverse the presumption of legitimacy!
Jon Roland, March 1, 2001
The jurisprudence of the United States is largely based on a doctrine that
needs to be examined: that official acts of Congress or the Executive Branch
are presumed to be constitutional or lawful unless declared otherwise by an
order or opinion of a federal court, and ultimately, the Supreme Court.
There has been a great deal of criticism of the judiciary for failing to
overturn obvious violations of the Constitution, and there has developed a
tendency to blame judges for those usurpations, but a closer analysis must
conclude that it is not the judiciary that deserves most of the blame.
In Marbury v. Madison Justice Marshall set forth the clearly implied
proposition that in a constitutional republic, statutes and other official acts
must be overturned by the courts if in conflict with the Constitution. Doing so
is not, however, so much the exercise of a power as the exercise of a duty that
is not limited to courts. In a constitutional republic everyone has a duty to
help enforce the law, and that means enforcing the superior law when laws or
official acts are in conflict, and since the Constitution is superior to all
other official acts, when there is a conflict with the Constitution, it is the
Constitution that must prevail. Overturning an act as unconstitutional is only
"judicial" review when judges happen to do it. It is actually
"constitutional review", and everyone is supposed to do it.
The problem is that everyone doesn't do it. Most people outside the
judiciary try to avoid doing it. They prefer to pass the buck to the judiciary,
who are not given sufficient resources to decide all the cases involving
violations of the Constitution. Congress passes thousands of legislative
provisions every year that raise constitutional issues, and the Executive
Branch issues tens or hundreds of thousands of regulations on the apparent
basis of such legislative provisions. There is no way that a Supreme Court that
can take only about 100 cases a year can cope with that load, even if all the
lower courts were willing to step forward and challenge the violations.
The duty of members of Congress is not to introduce or vote for
unconstitutional statutes. Needless to say, they are not performing that duty.
It doesn't help them get re-elected. It is all too easy to pass some bill that
they know perfectly well is unconstitutional, hoping to please some constituent
group, and perhaps hoping that the courts will strike it down for them. In the
unlikely event a court does, then they can safely blame the result on the court
to appease their constituents.
The duty of members of the Executive Branch is to not enforce
unconstitutional statutes, and to not issue regulations that purport to govern
civilians. Only acts of Congress can govern civilians, and then only if they
are constitutional. Regulations can only constitutionally be applied to
Yet when an Executive Branch appointee is even suspected of considering not
enforcing some unconstitutional statute, Congress threatens the appointment or
to cut the budget for something the President wants.
When an Executive Branch official goes to court, he thinks it his duty to
defend the statute, regardless of its constitutionality. What he should do is
ask the court for a declaratory judgement that the statute is unconstitutional,
but he doesn't. If he would just offer a weak defense, or an outrageous
defense, hoping to lose, it would be one thing. But to vigorously defend the
indefensible, especially when he usually wins, is a constitutionally
The fundamental problem, therefore, is not so much judicial supremacy as the
presumption of constitutionality or lawfulness for official acts. The only way
we can overcome this rampant usurpation is to put the burden of proof on any
official that his actions are authorized, and presume they are not unless he
This is actually a logical consequence of a constitutional system of limited
delegated powers. If plenary powers are not delegated, then the question of
whether a power exists for a particular act must always be addressed, and
decided against the official if not proved that he has authority.
The following clauses can be found in the proposed California Civil Rights
Amendments at http://www.constitution.org/pol/us/ca/initcivil.htm
(a) If any person claiming legal authority for any act should
fail, upon demand, to provide proof of such authority, before completing the
act, such failure shall be conclusive that no such authority exists, or if it
existed, that it has ceased to exist.
(b) For any official act of a government agent, proof of authority must
consist of an unbroken logical chain of authority leading back to the
Constitution, including copies of statutes enacted. Legal codes and court
opinions are not the law, but only evidence of the law. Official acts,
including legislative acts, shall not be presumed to be constitutional or
lawful, but must be proven to be so.
(c) Regulations issued by any department of the Executive Branch or
independent agency shall apply only to agents of that department, and not to
civilians or personnel of other departments. Only statutes or ordinances may be
applied to civilians or personnel of other departments.
What the above provisions do is recognize that in a constitutional republic,
there can be no delegations of "plenary" powers, even within a
subject (contrary to the opinion of Justice Marshall in McCulloch v.
Maryland). All delegations are restricted as to their scope and manner of
their exercise, and there can be no subdelegations of legislative or judicial
powers. This implies logically that all issues of law are issues of fact, and
must be judged by the same rules of evidence that apply to any other fact
issues. Official acts in a criminal proceeding must be examined with the same
rigor that contracts or private acts are in a civil case.
Adoption of such provisions, preferably in constitutions, could go a long
way to undoing the progressive usurpations that subvert constitutional
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