People who want to challenge a state or federal law for violating their constitutional rights face an uphill battle, thanks in part to the “presumption of constitutionality”—a principle invented by judges under which legislation is presumed to be constitutional unless a party challenging it can prove otherwise. But a recent concurring opinion by Arizona Supreme Court Justice Clint Bolick argues that courts should discard that presumption because it unduly protects government power at the expense of individual rights.
The case, State v. Arevalo, presented a state constitutional challenge to a state law that enhanced the sentence for the crime of “threatening or intimidating” based on a defendant’s membership in a criminal street gang. The majority opinion invoked the “strong presumption in favor of a statute’s constitutionality” under which “the challenging party bears the burden of proving its unconstitutionality,” but nonetheless struck the law down for violating substantive due process under the Fourteenth Amendment and the Arizona Constitution. The statute didn’t require any connection between the underlying crime of threatening or intimidating and a defendant’s gang membership—the crime could have nothing to do with the defendant’s gang membership, but the enhancement would still apply—so the court concluded that the statute impermissibly punished membership in itself.
The decision is not unique inasmuch as the court simply applied the U.S. Supreme Court’s Scales v. United States, a 1961 case that struck down a statute criminalizing Communist Party membership, and followed the example set by the Florida Supreme Court and the Tennessee Court of Criminal Appeals when they struck down similar sentence-enhancement statutes.
But Justice Bolick’s concurrence—joined by retired Justice John Pelander, sitting by designation—is noteworthy. Bolick agrees with the majority’s reasoning but argues that the court should eliminate the presumption of constitutionality because it tips the scales of justice in the government’s favor and “is antithetical to the most fundamental of ideals: that our constitutions are intended primarily not to shelter government power, but to protect individual liberty.”
Bolick rejects the idea that comity or respect for the other branches of government requires courts to presume that statutes are constitutional. Courts that apply the presumption might believe they are respecting the separation of powers, but the separation of powers only demands that judges not substitute their own policy judgments for those of the legislature; it doesn’t require judges to defer to the legislature on the legal question of whether a statute is constitutional. He further argues that deferring to legislators on constitutionality actually defeats the purpose of the separation of powers: the protection of individual rights. It also ignores the judiciary’s role in the separation of powers, which is to ensure that the political branches don’t exceed their constitutional authority. In particular, they must ensure that legislation favored by the majority does not oppress the minority. If courts defer to the legislature, they won’t fulfill that responsibility, and legislators will be the sole judges of their own laws’ constitutionality—something James Madison warned against in Federalist No. 10.
Bolick acknowledges that his view runs contrary to longstanding precedents of both his own court and the U.S. Supreme Court. But he observes that scholars have increasingly questioned the presumption of constitutionality, citing the work of Randy E. Barnett, F. Andrew Hessick, and the late Washington Supreme Court justice Robert F. Utter. And he notes that three members of the Texas Supreme Court, led by then-Justice Don Willett (now a judge of the U.S. Court of Appeals for the Fifth Circuit), recently questioned excessive judicial deference to the legislature. Now Justice Bolick’s opinion has drawn, and will draw, even more attention to this issue..
 State v. Arevalo, 470 P.3d 644 ¶ 1 (Ariz. 2020).
 Id. at ¶¶ 9, 11, 20 (citing U.S. Const. amend. XIV, § 1; Ariz. Const. Art. 2 § 4).
 Id. at ¶¶ 20, 27.
 Scales v. United States, 367 U.S. 203, 224-25 (1961).
 State v. O.C., 748 So.2d 945, 950 (Fla. 1999).
 State v. Bonds, 502 S.W.3d 118, 154-58 (Tenn. Crim. App. 2016).
 Arevalo, 470 P.3d 644 at ¶¶ 11-14, 16-21.
 Id. at ¶ 30 (Bolick, J., concurring).
 Id. at ¶¶ 33-40 (Bolick, J., concurring).
 Id. at ¶¶ 35-36 (Bolick, J., concurring).
 Id. at ¶¶ 37-39 (Bolick, J., concurring) (citing, inter alia, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 179 (1803); The Federalist No. 10 at 27 (Richard Beeman ed., 2012) (James Madison)).
 Id. at ¶¶ 30-31, 46 (Bolick, J., concurring).
 Id. at ¶ 43 (Bolick, J., concurring) (citing Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004); F. Andrew Hessick, Rethinking the Presumption of Constitutionality, 85 Notre Dame L. Rev. 1447 (2010); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 507 (1984)).
 Id. at ¶ 44 (Bolick, J., concurring) (citing Patel v. Tex. Dep’t of Licensing and Regulation, 469 S.W.3d 69, 93 (Tex. 2015) (Willett, J., concurring)).
 See, e.g., George F. Will, A Useful Litmus Test for the Next Supreme Court Justice, Wash. Post, Sept. 25, 2020, https://www.washingtonpost.com/opinions/a-useful-litmus-test-for-the-next-supreme-court-justice/2020/09/24/1204782c-fe96-11ea-9ceb-061d646d9c67_story.html (citing Bolick’s concurrence and proposing rejection of the presumption of constitutionality as a litmus test for Supreme Court nominees); Eugene Volokh, Arizona Supreme Court Justice Clint Bolick, Writing Against the “Presumption of Constitutionality", Reason, Sept. 1, 2020, https://reason.com/2020/09/01/arizona-supreme-court-justice-clint-bolick-writing-against-the-presumption-of-constitutionality/ (reproducing the concurrence).