Publication Title

Rutgers Law Review


state constitutional review standards, judicial writing, legal rhetoric, judicial review of statutes, state constitutional law, separation of powers, empirical data

Document Type



An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” which was famously promoted by Harvard professor James Bradley Thayer in 1893. The formulation never gained much traction at the United States Supreme Court, but its use spread widely at the state level. This analysis focuses on that state court usage, concentrating on the past twenty years. The article presents empirical data on the application of “unconstitutional beyond a reasonable doubt” in state supreme court decisions starting in 2000, observing that while its use is geographically random, it is applied mostly in civil cases and overwhelmingly in opinions upholding statutes. It shows how some state courts have picked up the formulation and then abandoned it, while in other jurisdictions it was absent and then suddenly appeared. Few state court decisions have consciously analyzed whether Thayer’s concept makes sense. But the concept continues to be used as a rhetorical device to communicate with coordinate branches of government and to provide institutional cover when an appellate court resolves a controversial case. What “unconstitutional beyond a reasonable doubt” does not do is serve as a working doctrine or presumption. This article concludes—as others have concluded—that the idea should be eliminated from judicial discourse because it does not help judges decide cases. It can mislead both lawyers and the public or appear disingenuous and reduce respect for the judiciary. Consequently, courts would do well to say what they mean and drop any pretense that “unconstitutional beyond a reasonable doubt” is a real standard.



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