Facial challenges are generally disfavored as such approach is seen as “manifestly strong medicine” in invalidating laws for being unconstitutional. While the early conception of the doctrine suggests that facial invalidation is permitted to assail only governmental acts that curtail the freedom of speech, recent jurisprudence has opened the doors to expanding this scope to other fundamental rights. However, broadening the application of facial challenges has associated costs which pose serious implications for the administration of justice. This is why the Court is impelled to act with prudence and constraint in carving out the doctrine under the broader framework of judicial review.
This Note posits that the scope of facial challenges may be expanded to permit suits assailing the constitutionality of statutes infringing upon other constitutional rights on the grounds of overbreadth and vagueness based on three reasons: first, free speech overlaps and is interrelated with other rights; second, chilling effect applies not only to free speech but also to other rights; and third, there is a need to reconcile jurisprudence as facial challenges have already been applied in non-speech cases. Moreover, in order to ensure that the costs associated with facial invalidation will not outweigh these underlying reasons, this Note proposes the adoption of the substantiality test in the contexts of overbreadth and vagueness doctrines in operationalizing facial suits. This measure ensures that facial challenge is resorted to only when infringement upon fundamental rights is widespread, not simply in isolated instances that could be better dealt with through as-applied suits.