Judicial ReEngineering

Moreover, a suspicion or possibility of unconstitutionality is not enough for American
courts to strike down a statute. Alexander Hamilton explained in Federalist
78 that the standard of review should be "irreconcilable variance" with the
Constitution. Anti-federalists agreed that courts would be unable to strike
down federal statutes absent a conflict
with the Constitution.
For example, Robert Yates, writing under the
pseudonym "Brutus", asserted that
"the courts of the
general government [will] be
under obligation
to observe the laws made by the
general
legislature not repugnant to
the
constitution."
These
principles—that
federal statutes can only be
struck down for
unconstitutionality
and that the unconstitutionality
must be clear—
were very common
views at the time of
the framing of the
Constitution. For example, George Mason
explained during the constitutional convention
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."
For a number of years, the courts were relatively deferential to Congress. Justice Washington put
it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and 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 a reasonable doubt."
Although judges usually adhered to this principle that a statute could only be deemed
unconstitutional in case of a clear contradiction until the twentieth century, this presumption of
constitutionality weakened somewhat during the twentieth century, as exemplified by the
Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144
(1938), which suggested that statutes may be subjected to closer scrutiny in certain types of
cases. Nevertheless, the federal courts have not departed from the principle that courts may only
strike down statutes for unconstitutionality.
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