Island County v. State ( 1998 )

Sanders, J.

(concurring) — Although the majority reaches the right result, it does so in spite of the erroneous, yet oft-repeated, claim that “a statute is presumed to be constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt.” Majority at 147.

I posit it is high-time, if not past time, to challenge this bald assertion for exactly what it is: A statement of ideological preference which favors the legislative branch at the expense of the executive, the judicial, and, most importantly, the individual citizen.

Read the constitution, and read it once again, I find no textual support for the proposition that a usurping legislature may impose an unconstitutional, yet “doubtful,” legislative act beyond the remedy of judicial review.

James Madison envisioned a vigorous and independent judiciary which would stand by the citizen’s constitutional rights—especially when under legislative assault:

[I]ndependent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive ....

Creating the Bill of Rights: The Documentary Record from the First Federal Congress 83-84 (Helen E. Veit et al. eds., Johns Hopkins Univ. Press 1991) (quoting 1 Annals of Congress 439 (Joseph Gales ed., 1789)). Alexander Hamilton, writing The Federalist No. 78, dismissed the reasoning of today’s majority:

No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representative of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. . . . It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, ... to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. . . . [I]n other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statute, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

The Federalist No. 78 (Alexander Hamilton) (May 28, 1788), reprinted in The Federalist Papers by Alexander Hamilton, James Madison and John Jay 395-96 (Garry Wills ed., 1982) (emphasis added).

Much to the same effect was Chief Justice John Marshall’s eloquent opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803):

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? ... It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act.

Between these alternatives, there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

[A]n act of the legislature, repugnant to the constitution, is void ....

The judicial presumption that a legislative act is constitutional unless proved otherwise beyond a reasonable doubt, I submit, cannot be reconciled with the aforementioned pronouncements of Madison, Hamilton, and Marshall. Moreover, the majority’s claim that deference to the Legislature is due because “[w]e assume the Legislature considered the constitutionality of its enactments” (Majority at 147) is simply a reformulation of precisely the same argument rejected by our founding fathers two centuries ago.

While the majority may justly claim “the Legislature speaks for the people” (Majority at 147) (emphasis added), it is the constitution, and only the constitution, through which the people speak for themselves. Their voice is fundamental, and it is only by their consent that we are governed.¹

By necessity any form of deference to the legislative branch, however slight, is a corresponding burden to the citizen who relies upon an independent and impartial judiciary to vindicate and protect his legal rights. Is not the judge who defers to the Legislature at the expense of the citizen-litigant also at odds with the mandate of the Code of Judicial Conduct which requires not only “impartiality,” but even the appearance of such? Compare CJC 2(A) (“Judges should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”). But under the rule posited by the majority, the citizen who seeks to, and by necessity must, rely upon an independent and impartial judiciary to preserve his constitutional rights from legislative deprivation will be reduced to second-class citizenship—second, that is, to the public servant who does now, in the words of Hamilton, “rise above his master

Factual Presumptions Are Not Legal Answers

Beyond being contrary to our constitutional scheme and corrosive to the function of judicial review, the doctrine as stated by the majority cannot bear the weight of its own logic as factual presumptions do not, and cannot, provide legal answers.

Presumptions find their use when factual questions are in dispute. Black’s Law Dictionary 1185 (6th ed. 1990) (Definition of presumption is “[a]n inference in favor of a particular fact.”). As one commentator has thoughtfully observed:

A presumption, in precise and ordinary usage, is a legislative or court made rule, or statute, that is concerned with matters of evidence—matters of fact, not of law. Presumptions are meant to solve problems of missing evidence, such as the presumption of death after a seven year absence; to shift the burden to the party most likely to be in possession of relevant evidence (such as the presumption contained in the doctrine of res ipsa loquitur); or to effect substantive policy by favoring one outcome despite available evidence (for example, a conclusive presumption that a husband is the father of any child conceived during the marriage). Other, looser uses of presumptions serve policy ends by encouraging conditions necessary for an impartial decision—for example, the presumption of innocence accorded to the criminally accused. All these examples address matters capable of proof or disproof, by evidence.

Jennifer Friesen, State Courts as Sources of Constitutional Law: How to Become Independently Wealthy, 72 Notre Dame L. Rev. 1065, 1091 (1997).²

Thus, it is the disputed factual questions, never the legal ones, which may be addressed by resorting to presumptions. Factual presumptions arise from simple necessity. We presume death has occurred when a subject is missing for seven or more years because the only other way to establish death would be to scour the earth for the body. We resort to this factual presumption in reliance upon human experience which indicates when one fact is proved, the fact presumed is likely to follow.

In stark contrast, legal questions are not ordinarily presumptive candidates because the law is at hand. Thus, all courts determine legal issues de novo. In re Electric Lightwave, Inc., 123 Wn.2d 530, 536, 869 P.2d 1045 (1994) (“This court examines issues of law de novo.”).

Legal questions concerning the scope of constitutional powers are no less legal questions. See Friesen, supra, at 1091 (“Presumptions cannot decide matters of law,... [A] true presumption of constitutionality is logically impossible . . . .”); Robert Satter & Shelley Geballe, Litigation Under the Connecticut Constitution—Developing a Sound Jurisprudence, 15 Conn. L. Rev. 57, 70 (1982) (“The standard also is unsuitable because in constitutional cases the issue is one of law, not of fact.”). Justice Linde, writing for the majority of our sister court in Oregon, overtly recognized same, noting the “presumption of constitutionality” is a “misleading usage, since presumptions properly refer to the factual predicates (which may include the presumption that the legislature meant to enact a valid law) but not to the legal conclusions at issue.” Brown v. Multnomah County Dist. Court, 280 Or. 95, 570 P.2d 52, 56 n.6 (1977).

Nor do I believe the presumption of constitutionality of a legislative act unless proved otherwise beyond a reasonable doubt is or can be applied as a practical matter unless the responsibility of judicial review were completely forsaken. Quite literally the maxim would require a court to sustain the constitutionality of any legislative act where there is any “doubt” as to its constitutionality. It would seem any good faith argument posited by a litigant would at least raise a “doubt” for which a reason exists although that doubt might not ultimately prove persuasive.³

Benefit of Doubt

Moreover, is not the talisman of an active judicial mind the faculty to test every thesis by raising doubts the less than agile mind would never consider? Enumeration and consideration of such doubts proves the validity of that result which ultimately overcomes them.

Nor would our National Constitution ever have been born were it put to the test of “beyond a reasonable doubt.” Indeed delegates to the constitutional convention were counseled by the sage mind of Benjamin Franklin to put aside their well-founded doubts and take their quill pen in hand:

On the whole, Sir, I cannot help express the wish, that every member of the Convention who many still have objections to it, would with me on this occasion doubt a little of his own infallibility, and, to make manifest our unanimity, put his name to this Instrument.⁴

(First emphasis added.) And no one less than Oliver Wendell Holmes cautioned, “To have doubted one’s own first principles is the mark of a civilized man.”⁵

While the majority would profess to immunize constitutionally doubtful legislation from judicial remedy, it is painfully apparent that the reciprocal approach (legislative restraint from enacting legislation which is constitutionally doubtful in the first instance) is the majority’s illusion. For example, President Franklin D. Roosevelt, still smarting from judicial rebuke, pressed his legislative program to Congress, concerns of its unconstitutionality notwithstanding, writing the Chairman of the Ways and Means Committee to support passage of the Bituminous Coal Conservation Act of 1935: “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.”⁶

If it is not the grave and ultimate responsibility of the judiciary to honor its oath to uphold the constitution, upon whose shoulders will the mantle rest? Is not this exactly that specter of lengthening shadows and changing air about which Justice Douglas warned:

As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight which we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.[⁷]

Oppression by Presumption

Presumptions clearly favor the party on whose side the presumption lies. See David M. Burke, The “Presumption of Constitutionality ” Doctrine and the Rehnquist Court: A Lethal Combination for Individual Liberty, 18 Haey. J. L. & Pub. Pol’y 73, at 90 (1994) (“the ‘presumption of constitutionality’ doctrine imposes such a tremendous burden on an individual challenging an exercise of power by Congress that its construction of its powers is, if not ‘conclusive,’ at least so nearly the case that the disparity between theory and reality is, for purposes of analytical review, essentially irrelevant.”). The end result is simply to place the Legislature above the Constitution on at least those occasions where the presumption is marginally determinative.⁸ Logically the Legislature is thus permitted to impose an unconstitutional act absent judicial relief under the presumption, which it could not do absent the presumption. Such also holds true even where the challenger is another branch of government such as the executive—or the judiciary—itself. For example, if the Governor asserts the Legislature has acted unconstitutionally in violation of the separation of powers, this court will, under the majority’s “presumption,” begin its deliberations by presuming the Legislature acted constitutionally until the Governor proves the contrary “beyond a reasonable doubt.”

As Justice Utter astutely noted after years on the bench, the presumption of constitutionality “seriously hampers the courts’ accomplishment of what article 1, section 1 of the Washington Declaration defines as the fundamental purpose of our state’s constitution and government: to protect and maintain individual rights.” Justice 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).

Undermining Separation of Powers

The purpose of our constitutional system is the preservation of individual rights.⁹ But “there is no liberty, if the judiciary power be not separated from the legislative and executive.” Baron De Montesquieu, The Spirit of the Laws 152 (Thomas Nugent trans., Hafner Press 1949). Separation of powers¹⁰ was intended to balance governmental power against governmental power to prevent the abuse of that power held in any one set of hands.¹¹ Checks and balances were intended to keep it that way.¹²

Baron De Montesquieu, often credited as the philosophical father or at least prime articulator of the separation of powers doctrine, found political liberty only in those societies where there is no abuse of power—and the countervailing force of other power the only realistic curb to that abuse:

But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits?

To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.

The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty ....

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. . . . Were it joined to the executive power, the judge might behave with violence and oppression.

Baron De Montesquieu, supra, at 150-52. However today’s majority, which regales itself in legislative deference, thereby surrenders at least a portion of that righteous power necessary to check that power exercised by the Legislature. Such capitulation in the face of unconstitutional legislative usurpation is no virtue. It eliminates the most important constitutional check upon legislative abuse. It is license for the strong to vanquish the weak.

Such surrender, often euphemistically denominated “restraint,” is sometimes falsely glorified as an aspect of the judiciary’s role as a coequal branch of government; however, in matters of constitutional law, the judiciary is not coequal, but supreme. Justice Theodore L. Stiles, elected to the Washington State Supreme Court in the same election which popularly ratified the state constitution, made this very point:

The courts are, and in the nature of things, must be the appellate body, and their power of review extends over the entire domain of public and private right. Once it is conceded, as it now is universally, that a statute may be declared void as unconstitutional, there is no denying the proposition of judicial supremacy. Whenever the legislature enacts a law it thereby assumes and asserts that it is constitutional; and whenever the court declares the contrary, the judgment of the court prevails, and there is no power except that of the people in constitutional convention that can reverse it.

Why hesitate then on account of a theoretical equality which does not exist? A little courage exerted a good many years ago, and a little less fear of consequences, would have saved us from the drifting which has carried us so far from the ideal of our forefathers.

Justice Theodore L. Stiles, “Legislative Encroachment Upon Private Right,” from Address to the Wash. State Bar Ass’n, in C. S. Reinhart, History of the Supreme Court of the Territory and State of Washington 42, 47 (Private prt’g, n.d.). Amen. I have no doubt if the majority rediscovered and then shared the convictions of the founders it would soon find the courage to effect a restoration of those fundamental principles for which our forgotten patriots successfully contended.

The Framers of both the Federal and Washington Constitutions understood that of all the branches the legislative was the most likely to accumulate excessive power.¹³ Accordingly, the constitution set additional, and express, limitations upon the Legislature, most notably in the Bill and Declaration of Rights, however also in other sections including the one at issue in this very case. Const. art. II, § 28 (“The legislature is prohibited from enacting any private or special laws in the following cases . . . .”).

In the words of Chief Justice John Marshall:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written ....

It is, emphatically, the province and duty of the judicial department, to say what the law is.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L. Ed. 60 (1803).

Conclusion

Nor is it clear how far the majority’s presumption would reach. Is it to be applied in all cases, even those where the Legislature is challenged by the Governor?¹⁴ Will it be allowed to subdue our liberties when the legislative acts at odds with an express clause of the Bill of Rights?¹⁵ Does the majority propose this court surrender its responsibility to guard the constitutional flame by smothering it under this mindless cloak of sophistry?

Due respect for our constitutional system requires the court to review, de novo, every challenge to a governmental act where the challenge is that the government has transcended the constitutional boundaries of its authority.¹⁶ Any other standard places the servant above the master and denies the weak their judicial champion.¹⁷ This presumption of legislative constitutionality cannot stand.

Reply to Justice Talmadge

My colleague’s “special concurrence” (Sp. cone.) adds heat where light is needed. He favors judicial deference to unconstitutional statutes, yet concedes the beyond-a-reasonable-doubt standard cannot possibly be an evidentiary test. He opines, “Either a statute is constitutional or it is not” Sp. cone, at 172 but denies the beyond-a-reasonable-doubt maxim the force of its language. For, quite literally, the maxim requires us to hold either a statute is proved unconstitutional beyond a reasonable doubt, or we must uphold it, which literally requires us to opine: Either a statute is proved unconstitutional beyond a reasonable doubt, or we will hold it is constitutional even if it really isn’t.

Reminding us he has “served in the Legislature for 16 years” Sp. cone, at 175, Justice Talmadge applies that experience by debating a colleague rather than the issue at hand and then, as the ultimate fallback for a failed argument, implies the presumption is not a problem, as it has not “affected the outcome of a court’s decision on the constitutionality of a state statute.” Sp. cone, at 172. However the former is irrelevant, whereas the latter causes one to question the very existence of a judge-invented rule of constitutional construction thus shorn of all practical effect.

As to what the constitution requires of the legislative authority in this particular context, the answer is provided by the majority. Other statutes and other constitutional provisions are not at issue. Each such legal question must be determined de novo by the court, as with any legal question, without partiality to either of the contending parties—even if one be the government itself. That, it appears, is where my colleague and I part company. See Sp. cone, at 174.¹⁸

Although comment on how the constitution might apply to other questions which are not before us today would not only be irrelevant but irresponsible, my views on such particular matters are set forth at some length in other opinions over my signature, rather than my colleague’s. For example when a majority of this court in an opinion authored by Justice Talmadge declared the initiative which imposed term limits on the legislative branch unconstitutional, I noted in dissent that if doubt were sufficient to save such legislation from constitutional attack, there was more than enough doubt to save that measure. Gerberding v. Munro, 134 Wn.2d 188, 214 n.6, 949 P.2d 1366 (1998) (Sanders, J., dissenting). There my dissent clearly rested on the constitutional text, not a denunciation of “the majority opinion for ignoring votes of the people” (Sp. cone, at 173 n.22), although, it be true, the majority in Gerberding hardly deferred to the people. The concurrence (Talmadge, J.) also contains a gratuitous reference to Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), a case which I have never cited in any opinion and which was overruled a half century ago. See, e.g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 (1952). How this advances the argument escapes me.

And then, of course, is the polemic about “judicial activism.” Sp. cone, at 174. Apparently it is my colleague’s view that when he opts to set aside an enactment of the Legislature or an initiative passed by the people upon the claim that it is inconsistent with the constitutional mandate he acts with the restraint due a matter of the “gravest concern.” Sp. cone, at 174-75.

However, when one of his colleagues reaches a similar result in another matter contrary to that writer’s preference, we witness an unpardonable “act of activism.” I venture such rhetoric is better left in the halls of the Legislature from whence my colleague claims his expertise rather than the pages of these reports. For it is my preference that these pages be reserved for discussion of legal issues, not the contest of offensive personality.

1 Justice Richard B. Sanders, “Original Consent,” from the Lincoln Day Speech to Tacoma-Pierce County Bar Ass’n (Feb. 13, 1997), in 52 Wash. St. B. News, Feb. 1998, 41, 43. (“This precedent subverts the constitution, as effectively as any alien force, in the form of rules of construction and presumptions. These essentially say the government is presumed to be right when it is really wrong; that it is strong, when by the constitutional text it is clearly weak; that no person’s right has been violated when in truth his right has been taken; that an unconstitutional statute is nevertheless enforced unless proven to be so beyond a reasonable doubt; or that some alleged preposterous fact exists by virtue of legislative declaration or judicial whimsy, when any school child can tell you, ‘The emperor has no clothes.’ ”).

2 See also Gerberding v. Munro, 134 Wn.2d 188, 212, 949 P.2d 1366 (1998) (Sanders, J., dissenting) (questioning propriety of beyond a reasonable doubt presumption to the purely legal question of whether initiative is unconstitutional but observing if the standard were actually applied the majority opinion could not withstand the test of doubt).

3 Compare 11 Washington Pattern Jury Instructions: Criminal 4.01 (2d ed. 1994) (“A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of evidence . . . .”).

4 Benjamin Franklin, speech at Constitutional Convention, Philadelphia, Sept. 17, 1787, in Writings op Benjamin Franklin 9:607-08 (Albert H. Smyth ed., 1906).

5 Oliver Wendell Holmes, Ideals and Doubts, 10 Ill. L. Rev. 1, 3 (1915).

6 Letter from Franklin D. Roosevelt to Samuel B. Hill, Chairman of House Ways and Means Committee (July 6,1935) in Public Papers and Addresses of Franklin D. Roosevelt, 4:297, 298 (Samuel I. Rosenman ed., 1938).

7 Letter from William O. Douglas to Young Lawyer Section of Wash. State Bar Assoc. (Sept. 10, 1976) in Douglas Letters 162 (Urofsky ed., Alder & Alder, 1987).

8 See also Robert Satter & Shelley Geballe, Litigation Under the Connecticut Constitution—Developing a Sound Jurisprudence, 15 Conn. L. Rev. 57, 70 (1982) (“Creating more than a presumption of constitutionality for legislative or executive action places the reaches of those branches almost above the constitution and tends to render the constitution itself subsidiary.”).

9 See Const, art. I, § 1 (The constitution and government “are established to protect and maintain individual rights.”).

10 See generally In re Salary of Juvenile Director, 87 Wn.2d 232, 240, 552 P.2d 163 (1976) (Separation of powers is “ ‘the dominant principle of the American political system.’ ”) (quoting Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 449 (1969)).

11 The Federalist No. 47, at 324 (James Madison) (Jacob E. Cooke ed., 1961) (“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny. . . . [TJhe preservation of liberty requires, that the three great departments of power should be separate and distinct.”).

12 The Federalist No. 51, at 349 (James Madteon) (Jacob E. Cooke ed., 1961) (Under checks and balances “[a]mbition must be made to counteract ambition” and “[Tjhose who administer each department [are given] the necessary constitutional means, and personal motives, to resist encroachments of the others.”).

13 As James Madison warned, “ '[T]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.’ ” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (quoting The Federalist No. 48, at 333 (James Madison) (Jacob E. Cooke ed., 1961)). Madison further forewarned, “[I]t is against the enterprising ambition of th[e] [legislative] department, that the people ought to indulge all their jealousy and exhaust all their precautions.” The Federalist No. 48, at 334 (James Madison) (Jacob E. Cooke ed., 1961). Washington is no different. See Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Hist. Q. 227 (1913) (“[0]f all oppressive and unjust instruments of government the legislature is the greatest and most irresponsible.” Id. at 250. “The extreme fears of convention concerning the usurpation of power by the legislature are shown by the remarks of a member along that line. ‘If,’ said he, ‘a stranger from a foreign country were to drop into this convention, he would conclude that we were fighting a great enemy and that this enemy is the legislature.’ ” Id. at 265.).

14 Even Justice Scalia admits any such presumption would be improper in turf wars between the legislative and executive branches. See Morrison v. Olson, 487 U.S. 654, 704-05, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) (Scalia, J., dissenting) (“[W]here the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct.”).

15 Even courts which apply the presumption use an opposite presumption when the legislation infringes on an explicit constitutional guarantee. See Simon & Schuster, Inc. v. Members of N.Y. Crime Victims Bd., 502 U.S. 105, 115, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (“A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”); Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154, 943 P.2d 1358 (1997) (“The State bears the burden of justifying a restriction on speech.”), cert. denied, 118 S. Ct. 856 (1998). Does the majority intend to flip this upside-down as well? It may, because the constitutional clause at issue here (Const, art. II, § 28) is directly infringed.

16 Some have suggested we go further and presume legislative acts limiting individual liberty be presumed unconstitutional. There is much to be said for this approach. See David M. Burke, The “Presumption of Constitutionality” Doctrine and the Rehnquist Court: A Lethal Combination for Individual Liberty, 18 Harv. J. L. & Pub. Pol’y 73, at 159-62 (1994) (“presumption of liberty.”); Robert Satter & Shelley Geballe, Litigation Under the Connecticut Constitution—Developing a Sound Jurisprudence, 15 Conn. L. Rev. 57, 72 (1982) (“[Wjhere express or implicit rights are infringed, a presumption of unconstitutionality should prevail ----”).

17 Others agree. See State v. Aver, 109 Wn.2d 303, 317-18, 745 P.2d 479 (1987) (Utter, J., dissenting) (“[Tjhis court should abandon the use of the phrase ‘beyond a reasonable doubt’ altogether in the context of determining the constitutionality of statutes.”). See also Tom Chambers, When Our Forebears Created the Judicial Branch, 51 Wash. St. B. News 17 (Feh. 1997) (“[W]hen our forebears drafted our constitution, they recognized that the rich, the powerful and the majority would have their way with the legislative branch of government. They further recognized that those same rich, those same powerful and that same majority would also have their way with the executive branch. That structure leaves to a third arm of government the duty to protect the poor, the weak and the powerless. Realizing that the minority must be protected from oppression by the majority, our forebears created the judicial branch.”).

18 The preference for the “institutional argument” that “legislative choices among conflicting values were beyond judicial competence to criticize and hence beyond judicial authority to strike down” has been described by Professor Tribe as a “dubious step.” Laurence H. Tribe, American Constitutional Law § 8-7, at 583 (2d ed. 1988). “As long as judges do not fully and irrevocably repudiate the mission of occasionally rejecting majoritarian political choices, there is no honest way for them to escape the burdens of substantive judgment in every case.” Id. at 585.