Constitutional Law - United States v. Lemons: Limiting Constitutional Review in Equal Protection Litigation

Abstract

INTRODUCTION|One of the more fascinating legal debates in recent years concerns the dispute over what role courts should play in our democratic form of government. Responding to the judicial activism of the 1960's, legal scholar and lay citizen alike have frequently argued that our courts have gone too far in extending the umbrella of constitutional protection. As society has increasingly looked to the courts for resolution of some of its most difficult problems, the question of whether courts should, or, even can, deal with such problems has been a recurring one. In a practical sense, the question involves if, and, how judges respond to the growing movement to limit the scope of judicial inquiry. In a classic article written over twenty years ago, Alexander Bickel discussed the ways courts can exercise the "passive virtues" so as to avoid constitutional resolution. By manipulating the standing, ripeness, mootness, and political question doctrines, they can avoid confrontations with other branches and levels of government when, because of notions of judicial comity, they deem it wise to do so. Such a restrained view of constitutional adjudication is consistent with the notion that courts should, whenever possible, avoid deciding questions of constitutional law. One technique of constitutional avoidance was recently employed by the Eighth Circuit in United States v. Lemons. Sometimes called separability, it involves the refusal to formulate a rule of constitutional law broader than is required by the precise facts of the present case, and thus, the unwillingness to address the question of whether the statute is constitutional as applied to parties other than the immediate challenger...