Rules and Judicial Review

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. The objective of this article is to examine the effect of statute-saving devices such as as-applied adjudication, severance, and narrowing interpretation, and to consider whether a rule-oriented analysis of judicial review can offer any insights about how courts should handle unconstitutional statutes