Your Right to Question Regulatory Authority

By: Keith Allison

It is my firm belief that as American citizens, we have an unquestionable Right to question the validity of any government or quasi governmental order, law, etc.. And, I believe the case of Budd vs. New York, 143 U.S. 517, 551, bears out that belief.

In Budd vs. New York, Justice Brewer declared: “The paternal theory of government is to me odious. The utmost possible liberty to the individual and the fullest possible protection to him and his property, is both the limitation and duty of government.”

And to implement this point of view, the Court (Supreme Court) next undertook to water down the accepted maxim that a State statute must be presumed to be valid until clearly shown to be otherwise.

In contrast to the presumed validity rule, under which the Court ordinarily is not obliged to go beyond the record of evidence submitted by the litigants in determining the validity of a statute, the judicial notice principle, as developed in Mugler vs. Kansas, carried the inference that unless the Court, independently of the record, is able to ascertain the existence of justifying facts accessible to it by the rules governing judicial notice, it will be obliged to invalidate a police power regulation as bearing no reasonable or adequate relation to the purposes to be sub-served the latter, namely, health, morals, safety, or welfare.

This advantage was enhanced by the disposition of the Court, in litigation embracing the latter type of legislation, to shift the burden of proof from the litigant charging unconstitutionality to the State seeking enforcement. To the State was transferred the task of demonstrating that a statute interfering with the natural Right of liberty or property was, in fact, authorized by the Constitution, and not merely that the latter did not expressly prohibit enactment of the same.

For all intents and purposes, I don’t believe it takes a high priced Philadelphia lawyer to comprehend the significance of the Court’s ruling here. It appears to me the Court clearly comprehends that American Citizen’s are not illiterate fools, and are more than capable of determining for themselves the constitutional legitimacy of any governmental edict.

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