Ofer Raban (University of Oregon – School of Law) has posted Constitutional But Legally Invalid: On the Practice of Interpretive Judicial Review on SSRN. Here is the abstract:
This paper argues that courts regularly employ a form of non-constitutional judicial review by depriving statutes of their intended legal effect if these statutes offend some principle of the Rule of Law. This form of judicial review goes relatively unnoticed for two principal reasons. First, it is obscured in the ordinary process of legal interpretation, where it is often presented as respecting — rather than thwarting — legislative wishes. Second, many of the clearer occasions for such non-constitutional judicial review are decided through constitutional review, as more and more rule of law principles have become embedded in constitutional requirements.