Partial Unconstitutionality

Kevin Walsh, Villanova University School of Law

This is a working paper.


Severability doctrine provides the leading, and some say only, way to deal with partially unconstitutional statutes. But severability is a deeply flawed doctrine whose distinctive function—which is not to save, but to destroy—is misunderstood. This Article provides an alternative, based on the approach used in the first several decades of judicial review. This Article excavates the old approach and explains how a reconstructed version of that original approach can be implemented in today’s significantly different processes of constitutional adjudication.