Constitutional Law Commons^™

Response: There Is No New General Common Law Of Severability, Kevin C. Walsh

Law Faculty Publications

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.