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Ei Qui Negat…

Bradley Smith is bemused, over at the National Review by The New Rebublic’s assertion that

[The Supreme Court] should presume laws to be constitutional, just as trial courts presume accused criminals to be innocent.

As well he might be. Sheesh. It’s a fundamental principle of law: ei qui affirmat non qui negat incumbit probabio (“the burden of proof is on he who affirms, not he who denies”). And this dimwitted idea shows why: any presumption of constitutionality in the Supreme Court is a presumption that what the court exists to test has already been proved. If you presume proof, there isn’t really much point in having the court in the first place. It’s the very opposite of the presumption of innocence in criminal cases, which stems from very the fact that the case has yet to be proven.

So, are the editors of the New Republic guilty of rank knuckleheaded stupidity, or willful, malicious, deceit? Must be one or the other. And, since Leftists are officially smarter than everyone else

(H/T: Rand Simberg, for both links. Yes, this is another comment that grew too substantial…)


  1. Laird says:

    Well, yes and no. The Court has long adopted a position of “deference” to statutes (and regulations), meaning that if there is any way in which a law’s constitutionality can be upheld it will be. Frankly, I don’t see that this is a whole lot different than a “presumption of constitutionality”.

    And you misstate what a “presumption” is. It’s not a presumption of *proof*, it’s merely an evidentiary standard which is subject to rebuttal. Just like the “presumption of innocence” in a criminal trial.

  2. Sam Duncan says:

    I bow to your greater knowledge, Laird. This is what happens when you learn Latin but chicken out before the Law degree.

    I still say it’s nuts though.

  3. Ornithorhynchus says:

    I know I’d much rather see a presumption of Unconstitutionality, but I’m pretty certain that’s never been the practise in the entire history of the Supreme Court.

    I’ve been thinking for some time that we should pass an amendment requiring a unanimous decision for any law or Government policy to be upheld as Constitutional.

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