Choosing Constitutional Remedies

Abstract

When a judge finds that a statute violates the Constitution, the statute must give way. But in many cases, there is more than one way for a judge to remedy the conflict between a statute and the Constitution. And in choosing which remedy to impose, there is usually no external source of law telling the judge what to do. They alone must decide which remedy is best.

How should judges exercise this discretion? In the American tradition, it is taken for granted that judges should use restraint — they should select the remedy that disrupts the statute as little as possible. But, as this Article shows, there are two conflicting approaches to judicial restraint when choosing constitutional remedies. One approach, herein labeled “Editorial Restraint,” holds that judges should assume as little power to change legislation as possible. It posits a sliding scale of judicial interventions — adding language to a statute is worse than striking down language, which is worse than striking down an application, which is worse than adopting an avoidance interpretation. The other approach, herein labeled “Purpose Preservation,” focuses instead on finding the remedy that does the least damage to the legislature’s goals. That remedy might involve adding language, striking down language, striking down an application, or adopting an avoidance interpretation — all that matters is the intervention’s substantive effect on the statute and the legislative purpose. These two approaches are manifested in relatively pure form in the laws of England (which adopts Editorial Restraint) and Canada (which adopts Purpose Preservation), while the American doctrine of constitutional remedies is an untheorized, heterodox, and often incoherent mix of both.

This Article explores several different aspects of the American doctrine of constitutional remedies, showing that it sometimes follows the logic of Editorial Restraint and sometimes the logic of Purpose Preservation (and, sometimes, that it purports to follow one but in fact follows the other). The Article then argues that Purpose Preservation is the superior approach, and ought to be explicitly embraced. This is so because Editorial Restraint relies on false distinctions — there is no meaningful difference between a judge adding language to a statute, striking down language, striking down applications, or adopting an avoidance interpretation. These remedial categories blur together in practice, and none is a greater intrusion into the legislative sphere than any other. Purpose Preservation, while not a perfect approach, at least safeguards the principle that majoritarian legislatures’ goals should determine the content of the statutes they enact.

Keywords: remedies, constitution, severability, facial challenges, purposivism, intentionalism, originalism, canada, england, comparative law, judicial review, countermajoritarian difficulty, constitutional law, equal protection