Frames of Reference and the Turn to Remedy in Facial Challenge Doctrine

This symposium contribution responds to Professor David L. Faigman's article, Defining Empirical Frames of Reference in Constitutional Cases: Unraveling the As- Applied Versus Facial Distinction in Constitutional Law. The response supplements Professor Faigman's descriptive account of how facial challenge doctrine functions in constitutional adjudication, finding that the deployment of facial challenge doctrine in the Roberts Court is largely continuous with prior case law that neglects the interdependence of facial challenge doctrine with the underlying substantive constitutional law that it implements. Yet there are signs of the emergence of a more promising approach that treats the scope of invalidation as a question of remedy. Because this "turn to remedy" allows courts to more finely calibrate the remedy of invalidation to substantive constitutional law, Professor Walsh contends, this emerging approach offers an attractive alternative to the current trans-substantive approach that focuses on the "heavy burden" to be borne by facial challengers.