摘要：For much of its history, the Supreme Court applied a very strong presumption of constitutionality in favor of federal statutes, striking them down only if convinced the statute was unconstitutional beyond a reasonable doubt. In more modern cases, however, the Court affords a much weaker “presumption of constitutionality” that is closer to a mere tiebreaker, does not apply to all constitutional challenges, and affords only factual, not interpretive deference. This Article argues for adjusting the presumption of constitutionality based on the margin of statutory passage, and setting as the maximum the older, stronger beyond-rational-doubt presumption. Adjusting the presumption based on the margin of passage addresses the concerns behind the “countermajoritarian difficulty.” It is supported by the Constitution’s supermajoritarian structures and theorists’ arguments about the superiority of supermajority enactments. It would improve the Court’s legitimacy by making explicit and legitimate a basis of decision that has been perceived to have influenced the Court’s decision making in key cases. It would also be more objective than various theories advanced to allow the Court to accommodate popular will in constitutional interpretation, and would be easier to implement than legislative proposals to “fix” the countermajoritarian difficulty, because it can be implemented by the Court itself.
