Abstract
The distinction between facial and as-applied challenges continues to play a central role in constitutional litigation, including at the Supreme Court. Yet, the distinction and its related rules have long suffered from a lack of doctrinal clarity and consistency. This Note sets out a descriptive taxonomy of three problems facing constitutional litigants because of the murkiness surrounding the facial/as-applied distinction.
First, the “Doctrinal-Test Problem” refers to the fact that many constitutional doctrines appear to require the courts to engage in facial adjudication, even if a litigant wishes to bring an as-applied claim. Thus, as-applied litigants are forced into facial challenges, even where a facial challenge has no hope of success. Second, the “Factual-Scope Problem” refers to uncertainty regarding the breadth of factual pleading needed to succeed in a facial or as-applied challenge. For instance, facial claimants may be required to make arguments about the total factual scope of a challenged statute, despite the conceptual difficulty of anticipating the statute’s full reach. Conversely, courts might hold plaintiffs to a facial standard merely because they have broadly introduced facts, even if plaintiffs intend to raise only as-applied claims. Finally, the “Jurisdictional Problem” arises when a court’s jurisdiction is tied to the facial/as-applied distinction. When this occurs, the question of a court’s jurisdiction becomes particularly difficult for litigants to evaluate because of the ambiguity of the facial/as-applied distinction. This Note illustrates these three problems primarily through the discussion of recent transgender rights cases in which the facial/as-applied distinction has proven decisive.
By recognizing and reckoning with these problems, courts and policymakers will be better positioned to offer doctrinal clarity regarding the facial/as-applied distinction. Additionally, this Note’s taxonomy helps litigants assess how to frame their constitutional claims, including at the pleadings and discovery stages of litigation.
Citation
Sean P. Wilson,
"The Persistent and Muddy Dispute": How the Facial/As-Applied Distinction Creates Problems for Constitutional Litigants,
75 Duke Law Journal
1033-1075
(2026)
Available at: https://scholarship.law.duke.edu/dlj/vol75/iss5/5