Holding Legislatures Constitutionally Accountable Through Facial Challenges

48 Pages Posted: 23 Apr 2009 Last revised: 29 Sep 2013

Date Written: April 20, 2009


The Roberts Court has viewed facial challenges with skepticism and hostility. The Court issued one early decision suggesting that its primary concern with facial challenges was the breadth of the remedy. More recently, however, the Court has simply denied facial challenges outright without considering the possibility of more limited relief. In these cases, the Court has focused more on the pre-enforcement and broad-ranging nature of facial challenges, expressing a preference for concrete evidence that a law has harmed, or will harm, particular classes of individuals. While placing a heavy burden on plaintiffs to demonstrate actual or likely harm, the Court has often deferred to legislative factual assertions regarding the purposes that underlie rights-infringing laws, even where those purposes are quite likely pretextual. The Roberts Court’s intolerance for facial challenges thus does more than perpetuate the Court’s longstanding confusion over the standard by which to assess such challenges; it permits the Court to withdraw from its critical role in safeguarding individual rights. This Article argues that facial challenges and facial invalidations can help to promote constitutional accountability among legislatures. When a legislature defies clearly established constitutional requirements, or when a legislature’s fact-based justifications for a rights-infringing law crumble under independent examination, a legislature repudiates its duty to uphold the Constitution. That shortcoming infects the entire law; it is not limited to some subset of potential applications. It is the courts’ duty in such cases, not to reward or accommodate the legislature’s failure, but to protect individual rights from it. Complete invalidation of the law in such circumstances satisfies constitutional norms and vindicates the courts’ critical role in protecting individual rights from majority oppression.

Keywords: facial challenge, Salerno

Suggested Citation

Borgmann, Caitlin E., Holding Legislatures Constitutionally Accountable Through Facial Challenges (April 20, 2009). Hastings Constitutional Law Quarterly, Vol. 36, No. 4, 2009, Available at SSRN: https://ssrn.com/abstract=1392549

Caitlin E. Borgmann (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States
718-340-4503 (Phone)

HOME PAGE: http://www.law.cuny.edu/faculty/directory/borgmann.html

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