Where Presumption Overshoots: The Foundation and Effects of Pennsylvania Department of Transportation v. Clayton
By Alan C. Green.
At the core of a just and well-ordered society lies a dedicated assurance of the right to due process of law. Due process is “intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.” However, as Justice Frankfurter famously declared, “‘Due process’ is, perhaps, the least frozen concept of our law—the least confined to history and the most absorptive of powerful social standards of a progressive society.”
The principle of due process creates a tension between the authority of the legislature and that of the courts. On the one hand, due process “is a restraint on the legislative . . . powers of government and cannot be construed as to leave congress free to make any ‘due process of law,’ by its mere will.” On the other hand, “it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.”
Since the era of Lochner v. New York, perhaps no due process doctrine illuminates this tension greater than the irrebuttable presumption doctrine (“IPD”). Developed in the early 1970s, the doctrine states:
It is forbidden by the Due Process Clause to [deprive an individual of life, liberty, or property] on the basis of a permanent and irrebuttable presumption . . . when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.”
In practice, IPD invalidates state action that purports to speak in terms of determinate criteria, but does not allow for the admission or consideration of evidence plainly relevant to those criteria.