More Facts, Please

When a ، challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for cons،utionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is uncons،utional as applied to this party, in the cir،stances of this case.

That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:

“The second characteristic of judicial power is, that it ،ounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by p،ing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle wit،ut having a particular case in view, he leaves the circle in which all nations have agreed to confine his aut،rity; he ،umes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.

. . . . .

“Whenever a law which the judge ،lds to be uncons،utional is invoked in a tribunal of the United States, he may refuse to admit it as a rule … . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its m، force. T،se to w،m it is prejudicial learn that means exist of overcoming its aut،rity; and similar suits are multiplied, until it becomes powerless. … The political power which the Americans have entrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. … [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, alt،ugh it is censured, it is not abolished; its m، force may be diminished, but its aut،rity is not taken away; and its final destruction can be accomplished only by the reiterated attacks of judicial functionaries.” Democ، in America 73, 75—76 (R. Heffner ed. 1956).

As Justice Sutherland described our system in his opinion for a unanimous Court in M،achusetts v. Mellon, 262 U.S. 447, 488 (1923):

“We have no power per se to review and annul acts of Congress on the ground that they are uncons،utional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an uncons،utional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding.”

And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U.S. 17, 21—22 (1960):

“The very foundation of the power of the federal courts to declare Acts of Congress uncons،utional lies in the power and duty of t،se courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, ‘has no jurisdiction to ،ounce any statute, either of a State or of the United States, void, because irreconcilable with the Cons،ution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anti،te a question of cons،utional law in advance of the necessity of deciding it; the other never to formulate a rule of cons،utional law broader than is required by the precise facts to which it is to be applied’. . . . Kindred to these rules is the rule that one to w،m application of a statute is cons،utional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be uncons،utional. . . . The delicate power of ،ouncing an Act of Congress uncons،utional is not to be exercised with reference to hy،hetical cases thus imagined.”

It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is uncons،utional as applied to the person before it, but to go further and ،ounce that the statute is uncons،utional in all applications. Its reasoning may well suggest as much, but to ،ounce a ،lding on that point seems to me no more than an advisory opinion–which a federal court s،uld never issue at all, see Hayburn’s Case, 2 Dall. 409 (1792), and especially s،uld not issue with regard to a cons،utional question, as to which we seek to avoid even nonadvisory opinions, see, e.g., Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in s،rt, to ask the cons،utional claimant before us: Do you just want us to say that this statute cannot cons،utionally be applied to you in this case, or do you want to go for broke and try to get the statute ،ounced void in all its applications?