As well illustrated by the litigation in Brown v. Board of Education, it is incumbent on the Supreme Court to identify the empirical frame of reference it uses to evaluate the constitutionality of some challenged action. In Brown, this required the Court to determine whether the proper frame of reference through which to measure constitutionality were the general effects of segregation, or whether constitutionality had to be assessed based on segregation's effects on the children involved in the specific cases before the Court. The Court chose the general frame, thus invalidating school segregation generally. This framing problem occurs throughout constitutional law, though the Court has given it little attention. Indeed, in the one context in which the Court has considered the matter, it has largely misunderstood what was at stake.
Specifically, the Court has signaled that it considers facial challenges to be highly unusual and suspect and that the more appropriate form of constitutional litigation is through as-applied challenges. Thus, the Court has sometimes stated a presumption in favor of individual adjudication, rather than the at-large form that occurred in Brown. Inherent in this approach is the Court's apparent belief that the constitutional issues presented in facial challenges are the same as those presented in as-applied challenges, just many times more numerous. But this is demonstrably not so, since the form of proof differs fundamentally in the two. The form of proof inevitably affects the substantive outcomes in constitutional cases. This Article argues that the decision regarding what empirical frame of reference to be used in constitutional cases should be an explicit component of constitutional interpretation. It describes the factors that should be considered in making that determination.
David L. Faigman,
Defining Empirical Frames of Reference in Constitutional Cases: Unraveling the as-Applied versus Facial Distinction in Constitutional Law,
36 Hastings Const. L.Q. 631
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol36/iss4/3