The Constitutionality of Irrebuttable Presumptions

24 Pages Posted: 25 May 2018

See all articles by James J. Duane

James J. Duane

Regent University - School of Law

Date Written: 2006


What is an "irrebuttable presumption"? And are they permissible under the Constitution? The Supreme Court of Virginia and the Virginia Court of Appeals have both mistakenly declared that the Due Process Clause forbids a court to use an irrebuttable presumption, even in a civil case. This view is not merely mistaken; it is incoherent and indefensible, because both state and federal legislatures routinely create irrebuttable presumptions. Indeed, even the Supreme Court of Virginia has created a number of such presumptions itself, although the Court obviously does not perceive the blatant contradiction in what it has done.

This article presents a short and plain explanation of what presumptions are and how they operate. It distinguishes between those presumptions that may be rebutted, and those that are said to be irrebuttable or conclusive. It explains why the use of such presumptions in a civil case ordinarily poses no significant constitutional difficulty of any kind. Indeed, irrebuttable presumptions have always abounded in the American legal tradition, and there is nothing illegal or unusual – much less unconstitutional – about their use in a civil case.

The article includes some valuable guidance for courts struggling to make sense of the constitutional limits on the use of irrebuttable presumptions in civil and criminal cases. It also concludes with some even more valuable guidance for legislatures on how to draft statutes that will avoid the problem altogether.

Keywords: presumptions, constitutional law, law of evidence, statutory interpretation

Suggested Citation

Duane, James, The Constitutionality of Irrebuttable Presumptions (2006). Regent University Law Review, Vol. 19, No. 141, 2006, Available at SSRN:

James Duane (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States


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