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CRS Annotated Constitution

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The Doctrine of Clear Mistake.—A precautionary rule early formulated and at the base of the traditional concept of judicial restraint was expressed by Professor James Bradley Thayer to the effect that a statute could be voided as unconstitutional only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”621 Whether phrased this way or phrased so that a statute is not to be voided unless it is unconstitutional beyond all reasonable doubt, the rule is of ancient origin622 [p.709]and of modern adherence.623 In operation, however, the rule is subject to two influences, which seriously impair its efficacy as a limitation. First, the conclusion that there has been a clear mistake or that there is no reasonable doubt is that drawn by five Justices if a full Court sits. If five Justices of learning and detachment to the Constitution are convinced that a statute is invalid and if four others of equal learning and attachment are convinced it is valid, the convictions of the five prevail over the convictions or doubts of the four. Second, the Court has at times made exceptions to the rule in certain categories of cases. Statutory interferences with “liberty of contract” were once presumed to be unconstitutional until proved to be valid;624 more recently, presumptions of invalidity have expressly or impliedly been applied against statutes alleged to interfere with freedom of expression and of religious freedom, which have been said to occupy a preferred position in the constitutional scheme of things.625

Exclusion of Extra–Constitutional Tests.—Another maxim of constitutional interpretation is that courts are concerned only with the constitutionality of legislation and not with its motives, policy, or wisdom,626 or with its concurrence with natural justice, fundamental principles of government, or the spirit of the Constitu[p.710]tion.627 In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in cases in which a finding of unconstitutionality has been made as a reassurance of the Court’s limited review. And it should be noted that at times the Court has absorbed natural rights doctrines into the text of the Constitution, so that it was able to reject natural law per se and still partake of its fruits and the same thing is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937.628

Presumption of Constitutionality.—“It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed,” wrote Justice Bushrod Washington, “to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt.”629 A corollary of this maxim is that if the constitutional question turns upon circumstances, courts will presume the existence of a state of facts which would justify the legislation that is challenged.630 It seems apparent, however, that with regard to laws which trench upon First Amendment freedoms and perhaps other rights guaranteed by the Bill of Rights such deference is far less than it would be toward statutory regulation of economic matters.631

Disallowance by Statutory Interpretation.—If it is possible to construe a statute so that its validity can be sustained against a constitutional attack, a rule of prudence is that it should be so construed,632 even though in some instances this maxim has caused the Court to read a statute in a manner which defeats or impairs the legislative purpose.633 Of course, the Court stresses[p.711]that “[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”634 The maxim is not followed if the provision would survive constitutional attack or if the text is clear.635 Closely related to this principle is the maxim that when part of a statute is valid and part is void, the courts will separate the valid from the invalid and save as much as possible.636 Statutes today ordinarily expressly provide for separability, but it remains for the courts in the last resort to determine whether the provisions are separable.637


621 The Origin and Scope of the American Doctrine of Constitutional Law, in J. Thayer, Legal Essays (Boston: 1908), 1, 21.
622 See Justices Chase and Iredell in Calder v. Bull, 3 Dall. (3 U.S.) 386, 395, 399 (1798).
623 E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).
624 “But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.” Adkins v. Children’s Hospital, 261 U.S. 525, 546 (1923).
625 Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice Frankfurter’s concurrence, id., 89–97, is a lengthy critique and review of the “preferred position” cases up to that time. The Court has not used the expression in recent years but the worth it attributes to the values of free expression probably approaches the same result. Today, the Court’s insistence on a “compelling state interest” to justify a governmental decision to classify persons by “suspect” categories, such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the exercise of a “fundamental” interest, such as the right to vote, Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports presumption of unconstitutionality.
626 “We fully understand . . . the powerful argument that can be made against the wisdom of this legislation, but on that point we have no concern.” Noble State Bank v. Haskell, 219 U.S. 575, 580 (1911) (Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86, 120 (1958) (Justice Frankfurter dissenting).
A supposedly hallowed tenet is that the Court will not look to the motives of legislators in determining the validity of a statute. Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); United States v. O’Brien, 391 U.S. 367 (1968); Palmer v. Thompson, 403 U.S. 217 (1971). Yet an intent to discriminate is a requisite to finding at least some equal protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), and a secular or religious purpose is one of the parts of the tripartite test under the establishment clause. Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and id., 665 (dissent). Other constitutional decisions as well have turned upon the Court’s assessment of purpose or motive. E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 (1922).
627 Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) (Justice Black dissenting). But note above the reference to the ethical mode of constitutional argument.
628 E.g., Lochner v. New York, 198 U.S. 45 (1905); United States v. Butler, 297 U.S. 1 (1936).
629 Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827). See also Fletcher v. Peck, 6 Cr. (10 U.S.) 87, 128 (1810); Legal Tender Cases, 12 Wall. (79 U.S.) 457, 531 (1871).
630 Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78–79 (1911); Metropolitan Cas. Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935).
631 E.g., United States v. Robel, 389 U.S. 258 (1967); United Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967). But see McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the “compelling state interest” test in certain areas of equal protection litigation also bespeaks less deference to the legislative judgment.
632 Rust v. Sullivan, 500 U.S. 173, 190–191 (1991); Public Citizen v. United States Dept. of Justice, 491 U.S. 440, 465–467 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
633 E.g., Michaelson v. United States, 266 U.S. 42 (1924) (narrow construction of Clayton Act contempt provisions to avoid constitutional questions): United States v. Harriss, 347 U.S. 612 (1954) (lobbying act): United States v. Seeger, 380 U.S. 163 (1965): Welsh v. United States, 398 U.S. 333 (1970) (both involving conscientious objection statute).
634 United States v. Locke, 471 U.S. 84, 96 (1985) (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
635 Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare id., 204–207 (Justice Blackmun dissenting), and 223–225 (Justice O’Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 929–930 (1991).
636 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 635 (1895); but see Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. Breckenridge, 403 U.S. 88, 104 (1971).
637 Carter v. Carter Coal Co., 298 U.S. 238, 312–316 (1936). See also, id., 321–324 (Chief Justice Hughes dissenting).
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