Eric Fish
84 Geo. Wash. L. Rev. 563
When courts engage in judicial review they do not merely invalidate or “strike down” unconstitutional statutes. Instead, they rewrite such statutes in order to make them constitutionally valid. They can do this in a variety of ways—by deleting words from a statute, adding words to a statute, or declar- ing that a statute will be read contrary to its apparent meaning. Such judicial amendments do not change the actual words that appear in the legislative code—only a legislature can do that. Rather, they create a situation where the full “text” of a statute includes both the provisions the legislature enacted and the judicial opinions changing those provisions’ meaning on constitutional grounds. For example, if a statute provides that “marriage shall be between one man and one woman,” and a court orders that this statute must be expanded to include same-sex marriage, then that order effectively rewrites the statute just as a legislative amendment would. Thus, the Supreme Court in Obergefell v. Hodges did not “strike down” state marriage statutes that excluded same-sex marriages—doing so would have abolished marriage for eve- ryone. Rather, it effectively inserted text into those statutes by declaring that they must include same-sex marriages.
Rejecting the invalidation assumption and embracing this judicial amendment model has profound consequences for the practice of judicial review. It means that judges are not restricted to invalidating existing statutory text, but can effectively rewrite an unconstitutional statute in any way that will render it constitutionally valid. The judicial amendment model also forces us to fundamentally rethink severability doctrine, as well as the use of facial challenges and the constitutional avoidance canon. And it strengthens the case for judicial federalism: if judicial review is a lawmaking act—rewriting a statute in light of a constitutional holding—then state courts should be the ones that decide how to fix unconstitutional state statutes.
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