Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate?

16 Texas Review of Law & Politics 1 (2011)

112 Pages Posted: 6 Jul 2016

Abstract

Most statutes that violate the Constitution are only partly unconstitutional, not entirely so. Whenever a court conducting judicial review holds that part of a statute is unconstitutional, that court must determine how much of the statute to invalidate. Properly understood, this is a doctrine of judicial restraint, one that seeks to allow as much of the work-product of the democratic process to survive, but only if doing so does not usurp the role of legislators, rewriting what could have been a carefully balanced legislative bargain. While legislative intent is often manifest in a severability clause, such a provision is not necessarily dispositive. Severability doctrine is the judicial process by which judges resolve these challenges.

Suggested Citation

Klukowski, Kenneth A., Severability Doctrine: How Much of a Statute Should Federal Courts Invalidate?. 16 Texas Review of Law & Politics 1 (2011), Available at SSRN: https://ssrn.com/abstract=2804041

Kenneth A. Klukowski (Contact Author)

Liberty University - School of Law ( email )

1971 University Boulevard
Lynchburg, VA 24502-2269
United States

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