Stopping short of striking down

Abstract In comparative constitutional law and theory, the judicial power to strike down laws has long been viewed as an awesome power in a democracy. Armed with the power to invalidate laws, courts get the final say on whether laws comply with the Constitution. And they get to enforce that decision by disapplying the law or declaring it void. For this reason, the strike-down power sits at the center of key debates in normative constitutional theory, where the power of unelected judges to nullify laws enacted by our elected representatives is portrayed as an affront to democracy. The argument of this article is that the strike-down is neither as strong, as central, nor as censorious as the theoretical and comparative literature would have us believe. Situating the strike-down in its broader adjudicatory context across multiple jurisdictions, I show that judges often stop short of striking down. Even if they decide to declare a law invalid, judges use various techniques to soften the blow of the strike-down, and narrow its temporal and legal effects. The upshot is that the strike-down is neither as final, as fatal, nor as forceful as is often assumed.