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Constitutional Conventions and Unwritten Constitutional Rules Constitutional conventions are established political practices and understandings that govern how constitutional institutions are expected to exercise their powers, even though those practices may not be written into a legally enforceable constitutional text. Unwritten constitutional rules can influence how governments form, how officials exercise formal powers, how legislatures operate, and how constitutional institutions interact. They are particularly important in systems such as the United Kingdom, where constitutional arrangements are Read more

The Counter-Majoritarian Difficulty: Why Unelected Courts Can Override Democratic Decisions The counter-majoritarian difficulty is the constitutional and philosophical problem created when courts invalidate laws or government actions adopted by democratically elected institutions. The difficulty is straightforward: in a democracy, political decisions are ordinarily made by representatives chosen by the people, yet constitutional courts—whose judges are generally not directly elected—may declare those decisions unconstitutional. The central question is therefore why judges should have the authority to Read more

Judicial Restraint, Judicial Activism, and the Proper Role of Courts Judicial restraint and judicial activism describe competing approaches to the exercise of judicial power. Judicial restraint generally emphasizes limited judicial intervention, respect for precedent, constitutional text and structure, and deference to the elected branches when the Constitution does not clearly require otherwise. Judicial activism is commonly used to describe judicial decisions that invalidate legislation, expand existing constitutional doctrine, depart from established precedent, or resolve important Read more

Constitutional Avoidance and Constitutional Interpretation: How Courts Read the Constitution Without Going Too Far Constitutional interpretation is the process through which courts determine the meaning of constitutional provisions and apply them to concrete legal disputes. Constitutional avoidance is a related but distinct principle: when a case can reasonably be resolved on non-constitutional grounds, courts may prefer that narrower route rather than deciding a difficult constitutional question unnecessarily. The doctrines are closely connected because constitutional interpretation Read more

Severability: What Happens When Part of a Law Is Unconstitutional? Severability is the legal principle that determines whether the constitutional parts of a law can remain in force when another part of the law is found unconstitutional. Instead of automatically invalidating an entire statute because one provision is unconstitutional, a court may remove, disregard, or refuse to enforce the unconstitutional portion while allowing the remainder to operate. The central question is whether the lawful portion Read more

Facial vs. As-Applied Constitutional Challenges: What Exactly Is Being Challenged? A facial constitutional challenge argues that a law is unconstitutional in itself, while an as-applied constitutional challenge argues that a law is unconstitutional as applied to a particular person or set of circumstances. The distinction is fundamental to constitutional litigation. In a facial challenge, the focus is on the legal rule itself: the challenger contends that the statute cannot constitutionally operate in the way the Read more

Constitutional Challenges: How a Law Is Challenged as Unconstitutional A law is challenged as unconstitutional when a person, organization, or government entity with a proper legal claim asks a court to determine whether the law is consistent with the Constitution. In the United States, this usually happens through an actual lawsuit rather than through a separate constitutional review procedure. A plaintiff who is affected by a law may argue that the law violates a constitutional Read more

Standing, Justiciability, and Access to Constitutional Courts Standing and justiciability determine whether a constitutional dispute can properly be heard by a court. In the United States, a person cannot ordinarily ask a federal court to decide a constitutional question simply because they believe that government has acted unlawfully. The plaintiff must generally demonstrate a sufficient personal stake in the dispute, including an actual or imminent injury that was caused by the challenged conduct and can Read more

Constitutional Remedies: What Happens When Government Violates the Constitution? When government violates the Constitution, the legal system can provide several different remedies depending on the nature of the violation, the government actor involved, the right that was violated, and the circumstances of the case. Constitutional remedies can include invalidating or enjoining unconstitutional government action, suppressing illegally obtained evidence, awarding damages in appropriate cases, ordering government officials to perform or stop performing particular acts, and granting Read more