Presumption of constitutionality
In Federalist 78, Alexander Hamilton wrote that courts should be able strike down a statute as unconstitutional only if there is an "irreconcilable variance" between the statute and the constitution. Otherwise, a statute should be upheld.
Likewise, at the 1787 Philadelphia Convention, Virginia delegate George Mason said that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."
Professor Randy Barnett argues that such a presumption is itself unconstitutional and suggests that government should be forced to prove that laws that violate liberty are necessary and prope in what he calls the "presumption of liberty".
- Hamilton, Alexander. Federalist #78 (1788-06-14).
- "Founders’ Constitution, Article 1, Section 7, Clauses 2 and 3", Records of the Federal Convention (1787-06-04).
- Barnett, Randy. Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press 2004).