This Symposium on Facial Challenges in the Roberts Court provides an opportunity to chart a path toward greater doctrinal coherence in light of the Court's most recent uses of the distinction between facial and as-applied challenges. In his contribution to this Symposium, David Faigman makes two claims that I address in this response. The first of Professor Faigman's claims is descriptive: "the debate over facial versus as-applied challenges is merely a subcategory of the pervasive issue concerning defining the proper frame of reference for empirical questions arising under the Constitution.'"' As Professor Faigman uses the term, a "frame of reference" is "the lens through which concrete cases are adjudicated.'' It determines "whether a constitutional provision raises factual issues, and the kinds of facts that are relevant to particular constitutional inquiries. " Professor Faigman's description captures an important insight into the role played by facial challenge doctrine in constitutional adjudication. In some cases in which the Court deploys facial challenge doctrine, however, the frame of reference is set entirely by substantive law. In those cases, facial challenge doctrine influences how the Court disposes of the case within the substantive-law frame of reference. Consider, for example, the Court's rejection of a facial challenge by political parties to Washington State's election scheme. Associational freedom case law provided the frame of reference, which required proof of voter perception of the relationship between parties and candidates in Washington's scheme. Such proof was not available because the scheme had not yet been implemented, and facial challenge doctrine foreclosed speculation about how voters would perceive the scheme when it was implemented. As this example shows, defining frames of reference is not the exclusive function of facial challenge doctrine. Faigman' s second claim is prescriptive: "the proper frame of reference in deciding constitutional cases should be an explicit component of constitutional interpretation.'' I agree. It is desirable for courts to intelligently establish the frame of reference for each constitutional ruling. I disagree, however, that "the Court surreptitiously manipulates the relevant frame to serve substantive objectives." The Court's frame shifting is typically not surreptitious, and any "manipulation" that does occur consists of adjustments to the availability of facial challenges in light of changes in underlying substantive law. Whether such adjustments are appropriate depends on an assessment about the best way of implementing the underlying substantive law.
Response or Comment
Kevin Walsh, Response, Frames of Reference and the "Turn to Remedy" in Facial Challenge Doctrine, 36 Hastings Const. L.Q. 667 (2009).