Document Type

Article

Publication Date

2009

Journal

Hastings Constitutional Law Quarterly

Volume

36

First Page

611

Last Page

630

Abstract

In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect important individual rights, but also to ensure that legislatures do not unfairly shift their constitutional responsibilities to the courts. Legislatures have in the past skirted their constitutional duties by passing blatantly unconstitutional laws in order to pander to public sentiment, "leav[ing] the courts to do their dirty work" of conforming the legislation to the Constitution.

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