Document Type


Publication Date



Hastings Constitutional Law Quarterly



First Page


Last Page



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.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.