Bushrod Washington and the Presumption of Constitutionality
One of Randy Barnett’s many contributions to constitutional law is his argument that the current presumption of constitutionality should replaced by a presumption of liberty. While there is no single source for the presumption of constitutionality, Justice Washington is often cited for this proposition. The quote comes from the conclusion of his opinion in Ogden v. Saunders (1827):
It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench.
While this line was quoted in three different dissenting or concurring opinions by Justice Brandeis, what catapulted Justice Washington’s admonition to fame was Franklin Roosevelt’s Fireside Chat defending his 1937 Court-packing proposal:
For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”
But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.
I wonder if Brandeis and FDR chose this quote because Justice Washington seemed to invoke the authority of George Washington. Unlike Corfield v. Coryell, which was about a constitutional clause that became even more important as a reference following the ratification of the 14th Amendment, there is nothing particularly special about Ogden or about Washington’s view of judicial deference.