Article III, Section 2, Clause 1 — Constitutional Avoidance Doctrine

ArtIII.S2.C1.10.1 Overview of Constitutional Avoidance Doctrine

The Constitutional Avoidance Doctrine is a set of rules the Supreme Court has developed over time that guide a federal court’s disposition of cases that raise constitutional questions. Summarized by Justice Louis Brandeis in his concurring opinion in Ashwander v. Tennessee Valley Authority, the Constitutional Avoidance Doctrine consists of seven rules generally known as: (1) the Rule Against Feigned or Collusive Lawsuits; (2) Ripeness; (3) Judicial Minimalism; (4) the Last Resort Rule; (5) Standing and Mootness; (6) Constitutional Estoppel; and (7) the Constitutional-Doubt Canon.¹ Rules 1, 2, 5, and 6—the Rule Against Feigned or Collusive Lawsuits, Ripeness, Standing and Mootness, and Constitutional Estoppel—inform whether a federal court should hear a case that has met the minimum Article III case-or-controversy requirements for a federal court to have jurisdiction.² As such, these four rules provide a further threshold that a case must clear for a federal court to hear it. By comparison, Rules 3, 4, and 7—Judicial Minimalism, the Last Resort Rule, and the Constitutional-Doubt Canon—address how a federal court should approach a constitutional question in a case before it.

The fundamental principle of the Constitutional Avoidance Doctrine is a federal court should interpret the Constitution only when it is a “strict necessity.”³ The reason for this is threefold: first, because the Constitution is the supreme law of the land, its interpretation has broad implications; second, an unelected Supreme Court exercising judicial review to countermand actions by an elected Congress or Executive or state governments is in tension with principles of democracy; and third, because the Supreme Court’s authority depends, as a practical matter, on the Executive enforcing and the people accepting its rulings the Court must be careful not to squander public goodwill by issuing ill-considered opinions.

The Constitutional Avoidance Doctrine provides federal courts procedural and substantive guidance on how to address cases involving constitutional questions. Rules 1, 2, and 5—the Rule Against Feigned or Collusive Lawsuits,⁴ Ripeness,⁵ and Standing⁶ and Mootness⁷—are procedural in nature and ensure that the Court only hears cases that are concrete, rather than speculative, and argued by parties genuinely and personally vested in the outcome such that they are the best advocates for their respective positions. Constitutional Estoppel bars a party from challenging a law’s constitutionality when he or she is enjoying the benefits of such law.⁸

Rules 3, 4, and 7—Judicial Minimalism, the Last Resort Rule, and the Constitutional-Doubt Canon—inform how federal courts should resolve constitutional questions in cases before them. Rule 3, Judicial Minimalism, instructs federal courts to answer constitutional questions narrowly and with reference to the specific circumstances at hand. Rule 4, the Last Resort Rule, advises that Justices should resolve cases on non-constitutional grounds, if possible, before resolving them on constitutional grounds. And Rule 7, the Constitutional-Doubt Canon, provides that courts should construe a statute to be constitutional if such a construction is plausible.

ArtIII.S2.C1.10.2 Judiciary in the Constitutional Framework

The Supreme Court developed the Constitutional Avoidance Doctrine to minimize concerns about unelected federal judges setting aside Congress’s laws on constitutional grounds. Underlying the Constitution is the principle that government legitimacy depends on the consent of the people. Noting that “Governments are instituted among Men, deriving their just powers from the consent of the governed,” the Declaration of Independence justified the colonies’ separation from the British Crown, because it had, through “repeated injuries and usurpations,” deprived the colonists of government that represented and protected their interests.¹

Contemplating that popular sovereignty would guard against tyranny, the Framers provided for the people to elect the House of Representatives directly and the Senate and the Executive indirectly. Popular sovereignty, which the Framers viewed as necessary for a free and republican government, meant government by the majority.² The Framers, however, feared that conflicting opinions and rivalries among factions of citizens might cause political instability or, if a faction gained a political majority, harm “the public good and the rights of other citizens.”³ To avoid this, the Framers crafted a Constitution that disbursed the limited powers of the new American government across three departments: the Legislative, the Executive, and the Judiciary, each with a unique role in securing for the Republic “a steady, upright, and impartial administration of laws.”⁴

The Framers were also concerned that different branches might attempt to expand their powers beyond those granted by the Constitution and upset the balance the Framers designed to “secure the blessings of liberty.”⁵ Consequently, the Framers provided each branch some ability to offset the power of the other two.⁶ Describing the division of federal power among the three branches in the Federalist No. 78, Alexander Hamilton identified the Judicial Branch as posing the least danger to the constitutional framework. He stated:

Whoever attentively considers the different departments of power must perceive that,

in a government in which they are separated from each other, the Judiciary, from the

nature of its functions, will always be the least dangerous to the political rights of the

Constitution; because it will be least in a capacity to annoy or injure them. The

executive not only dispenses the honors but holds the sword of the community. The

legislature not only commands the purse but prescribes the rules by which the duties

and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no

influence over either the sword or the purse; no direction either of the strength or of the

wealth of the society, and can take no active resolution whatever. It may truly be said to

have neither FORCE nor WILL but merely judgment; and must ultimately depend

upon the aid of the executive arm even for the efficacy of its judgments.⁷

Although Hamilton viewed the Judicial Branch as the weakest of the branches, the Framers saw it as critical to preserving the rights of individuals and ensuring that the Legislative and Executive Branches did not exceed their constitutionally-granted powers.⁸ Hamilton recognized the Constitution as superior to acts passed by Congress because the Constitution, by virtue of its ratification process,⁹ manifests the intentions of the people, whereas acts of Congress merely manifest the intention of the people’s agents.¹⁰ He wrote: “[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”¹¹

Hamilton further described the Judiciary as the “bulwarks of a limited Constitution against legislative encroachments,” stating: “[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.”¹² Hamilton also viewed the Judiciary as protecting minority interests from potential oppression by the majority, stating:

This independence of the judges is equally requisite to guard the Constitution and the

rights of individuals from the effects of those ill humors which the arts of designing

men, or the influence of particular conjunctures, sometimes disseminate among the

people themselves, and which, though they speedily give place to better information,

and more deliberate reflection, have a tendency, in the meantime, to occasion

dangerous innovations in the government, and serious oppressions of the minor party

in the community.¹³

Whether the Framers intended to authorize the Judiciary to set aside laws passed by the elected legislature, as Hamilton envisioned, has been the subject of debate from the Nation’s earliest days. The Constitution does not expressly provide for judicial review. And while it is clear from the Federalist Papers that many Framers contemplated judicial review as including the power to invalidate acts that violated the Constitution, it is less clear whether delegates to the state ratification conventions agreed as to what judicial review might entail.¹⁴

Chief Justice John Marshall’s opinion in his seminal 1803 decision, Marbury v. Madison firmly entrenched judicial review as a tenet of the new Republic.¹⁵ Chief Justice Marshall saw judicial review as implicit in the Constitution because, among other reasons, written constitutions are the paramount law; legislative acts contrary to the Constitution are thereby void; and the Constitution provides for the judicial department to interpret the law. In Marbury, Chief Justice Marshall wrote:

That the people have an original right to establish, for their future government, such

principles as, in their opinion, shall most conduce to their own happiness, is the basis,

on which the whole American fabric has been erected. . . . This original and supreme

will organizes the government, and assigns, to different departments, their respective

powers. . . . Certainly all those who have framed written constitutions contemplate

them as forming the fundamental and paramount law of the nation, and consequently

the theory of every such government must be, that an act of the legislature, repugnant

to the constitution is void. . . . It is emphatically the province and duty of the judicial

department to say what the law is. . . . [I]n declaring what shall be the supreme law of

the land, the constitution itself is first mentioned; and not the laws of the United States

generally, but those only which shall be made in pursuance of the constitution, have

that rank. Thus, the particular phraseology of the constitution of the United States

confirms and strengthens the principle . . . that a law repugnant to the constitution is

void; and that courts, as well as other departments, are bound by that instrument.¹⁶

Lending support to the notion that the Constitution contemplates judicial review, the Framers distinguished the Judicial Branch from the Legislative and Executive Branches by freeing it from most forms of political accountability.¹⁷ Unlike the Legislative and Executive Branches, the Federal Judiciary is not subject to elections or term limits. Instead, the President nominates and the Senate approves Justices to the Supreme Court.¹⁸ The Constitution further secures the Judiciary’s independence from public pressure and Legislative and Executive Branch influence by providing Justices life tenure during Good Behavior¹⁹ and preventing Congress from reducing the Justices’ compensation.²⁰

Congress, however, has some checks on the Judiciary. Justices can be impeached,²¹ and the Exceptions Clause in Article III grants Congress the power to make “exceptions” and “regulations” to the Supreme Court’s appellate jurisdiction.²² In addition, Congress can dilute the influence of individual Justices by increasing the number of Justices on the Court.²³ Finally, the Judiciary’s reliance on the other branches to give effect to its rulings provides a further check: If the Judicial Branch’s rulings are not enforced, the Judiciary becomes, in practical effect, a nullity, incapable of meaningfully performing its duty of preserving the Constitution.²⁴ Consequently, while the Judicial Branch is largely insulated from political pressure, it is not completely insulated.

ArtIII.S2.C1.10.3 Counter-Majoritarian Difficulty

The Constitutional Avoidance Doctrine posits that unelected jurists should exercise caution in striking down laws on constitutional grounds. While Congress can amend statutes when it disagrees with the Supreme Court’s statutory interpretations, Congress has no recourse when it disagrees with the Court’s constitutional interpretations other than to amend the Constitution.¹ Consequently, judicial review may frustrate the public “by foreclosing all democratic outlet for the deep passions [an] issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, [and] by continuing the imposition of a rigid national rule instead of allowing for regional differences.”² The problem posed by an unelected Supreme Court holding Congress’s laws to be unconstitutional and void has been described as the “counter-majoritarian difficulty.”³

Because the Court relies on public goodwill to ensure its rulings have practical effect, the Court’s opinions must be principled so that the public respects the Court’s judgments, even when it disagrees with its conclusions. In short, the Supreme Court’s authority depends on political majorities being willing to abide by rulings counter to their interests. As the Court observed in Planned Parenthood v. Casey: “the Court’s power lies . . . in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.”⁴ Consequently, the Supreme Court must ensure the “peaceful coexistence of the counter-majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.”⁵ In part to minimize this perceived counter-majoritarian difficulty, the Court developed the Constitutional Avoidance Doctrine to instruct federal courts on how to approach constitutional questions.

ArtIII.S2.C1.10.4 Ashwander and Rules of Constitutional Avoidance

From early on, the Supreme Court viewed setting aside Congress’s laws on constitutional grounds as problematic and has avoided doing so “unless such adjudication is unavoidable.”¹ For example, in the 1798 Calder v. Bull decision, Justice James Iredell stated: “If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in a clear and urgent case.”² Similarly, in the 1819 Trustees of Dartmouth College v. Woodward decision, Chief Justice John Marshall wrote: “On more than one occasion, this court has expressed the cautious circumspection with which it approaches the consideration of [whether a law is constitutional]; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution.”³ And, in the 1827 Ogden v. Saunders decision, Justice Bushrod Washington noted that judicial deference to the Legislative Branch means that laws should be presumed constitutional unless “proved beyond all reasonable doubt.”⁴ Later in the nineteenth century, Chief Justice Morrison Waite stated in the Union Pacific Railroad v. United States (The Sinking Fund Cases): “Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger.”⁵

Over five decades later, Justice Louis Brandeis, in his influential concurrence in Ashwander v. Tennessee Valley Authority, described the Constitutional Avoidance Doctrine as “a series of rules under which [the Court] has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.”⁶ The Ashwander Rules⁷ include:

• Rule 1) The Rule against Feigned or Collusive Lawsuits. Parties to a case must be

adverse to each other. Justice Brandeis stated: “The Court will not pass upon the

constitutionality of legislation in a friendly, non-adversary, proceeding, declining

because to decide such questions ‘is legitimate only in the last resort, and as a necessity

in the determination of real, earnest, and vital controversy between individuals.’”⁸

• Rule 2) Ripeness. The court should not resolve constitutional questions prematurely.

As Justice Brandeis wrote: “The Court will not ‘anticipate a question of constitutional

law in advance of the necessity of deciding it’”⁹ and “‘[i]t is not the habit of the Court to

decide questions of a constitutional nature unless absolutely necessary to a decision of

the case.’”¹⁰

• Rule 3) Judicial Minimalism. The court should decide questions of constitutional law

narrowly. Justice Brandeis stated: “The Court will not ‘formulate a rule of

constitutional law broader than is required by the precise facts to which it is to be

applied.’”¹¹

• Rule 4) The Last Resort Rule. If possible, a court should resolve a case on

non-constitutional grounds instead of resolving it on constitutional grounds.

Explaining this rule, Justice Brandeis stated: “The Court will not pass upon a

constitutional question . . . if there is also present some other ground upon which the

case may be disposed . . . . [I]f a case can be decided on either of two grounds, one

involving a constitutional question, the other a question of statutory construction or

general law, the Court will decide only the latter.”¹² He further added: “Appeals from

the highest court of a state challenging its decision of a question under the Federal

Constitution are frequently dismissed because the judgment can be sustained on an

independent state ground.”¹³

• Rule 5) Standing and Mootness. The complainant should suffer an actual injury; as

Justice Brandeis noted: “The Court will not pass upon the validity of a statute upon

complaint of one who fails to show that he is injured by its operation.”¹⁴

• Rule 6) Constitutional Estoppel. A party cannot challenge a law’s constitutionality

when he or she enjoys the benefits of such law.¹⁵ Justice Brandeis stated: “The Court

will not pass upon the constitutionality of a statute at the instance of one who has

availed himself of its benefits.”¹⁶

• Rule 7) The Constitutional-Doubt Canon. Courts should construe statutes to be

constitutional if such a construction is plausible. Explaining this requirement, Justice

Brandeis noted: “‘When the validity of an act of the Congress is drawn in question, and

even if a serious doubt of constitutionality is raised, it is a cardinal principle that this

Court will first ascertain whether a construction of the statute is fairly possible by

which the question may be avoided.’”¹⁷

ArtIII.S2.C1.10.5 Judicial Minimalism

Providing substantive guidance on how courts should address constitutional questions, judicial minimalism instructs that courts should not issue rulings “[in] broader [terms] than [are] required by the precise facts to which [the ruling] is to be applied”¹ or “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”² Instead, courts should limit their rulings to the facts of the instant case and avoid establishing broad precedents. Courts can use judicial minimalism to forestall ruling on politically sensitive issues, thereby allowing the elected legislature to craft a political resolution of the question.³ In addition, by drafting opinions narrowly, Justices may find it easier to build consensus in the Court by reducing the scope of issues to which they must agree.

When employing judicial minimalism, courts frequently pass over questions of constitutional import to focus more narrowly on issues specific to the case. For instance, in Liverpool, N.Y. & Philadelphia Steamship Co. v. Commissioners on Emigration,⁴ the Court was asked whether Congress could (1) ratify state laws that were previously struck down as unconstitutional state regulation of foreign commerce, or (2) bar claims for damages that the unconstitutional state laws caused.⁵ Noting that the case presented questions as to “the constitutionality of the act of congress” that were “of very grave importance,”⁶ the Court held it was “constrained to reverse the judgment, without deciding any of them.”⁷ In making this decision, the Court observed it was bound by two rules: “one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is applied.”⁸ Focusing on the case’s record, the Court found it incomplete and remanded the case for a new trial to determine the missing facts.⁹

Later, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court passed over complex constitutional issues to resolve the case on grounds specific to its facts. In Masterpiece Cakeshop, the question before the Supreme Court was whether a Colorado civil rights statute, which protected gay persons from being discriminated against when they were trying to procure goods and services, violated the First Amendment by requiring a baker to create a wedding cake for a same-sex couple. The baker viewed creating the cake to be an expressive artistic statement, and the civil rights statute as compelling him to use his artistry to express a message endorsing same-sex marriage despite his “sincere religious beliefs and convictions” to the contrary.¹⁰ Recognizing the conundrum presented by the case, the Court commented that while “religious and philosophical objections [to same-sex marriage] are protected, it is a general rule that such objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”¹¹ The Court, however, also took note of the baker’s view that requiring him to create the cake amounted to forcing him to make an artistic expressive statement contrary to his religious beliefs.

In a decision written by Justice Anthony Kennedy, the Court adopted a judicial minimalist approach. Instead of addressing the constitutional questions raised by the interplay of the Colorado civil rights statute and the baker’s First Amendment free exercise and free speech rights, the Court found that, during hearings before the Colorado Civil Rights Commission, several commissioners denigrated the baker’s religious beliefs, thereby violating his free exercise rights. Finding that “the Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion,” the Court ruled in favor of the baker.¹² The Court emphasized, however, the limited application of Masterpiece Cakeshop to other cases, stating:

The outcome of cases like this in other circumstances must await further elaboration

in the courts, all in the context of recognizing that these disputes must be resolved with

tolerance, without undue disrespect to sincere religious beliefs, and without subjecting

gay persons to indignities when they seek goods and services in an open market.¹³

A variation on the judicial minimalist approach is the practice of “assuming but not deciding” a constitutional issue. In these decisions, the Court foregoes resolving an underlying constitutional question, in favor of treating the constitutional question as resolved for the limited purpose of deciding the instant case. Such an approach enables the Court to resolve the dispute at issue without determining the underlying constitutional question. For instance, in National Aeronautics & Space Administration (NASA) v. Nelson, the Court chose to “assume, without deciding,” that the Constitution protects informational privacy.¹⁴ Based on this assumption, the Court found that NASA’s background checks did not violate the “assumed” constitutionally protected right to informational privacy. While “assuming but not deciding” allows the Court to resolve time-sensitive disputes while deferring resolution of thorny or politically sensitive constitutional questions, some have characterized the approach as disingenuous. Arguing that the NASA decision “makes no sense,” Justice Antonin Scalia, while concurring in the judgment, wrote: “The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy . . . .”¹⁵

In summary, judicial minimalism enables the Court to develop binding precedent on a legal issue slowly, thereby providing opportunity for the government’s Legislative and Executive Branches to resolve contested constitutional issues through the political process. Judicial minimalism further alleviates the counter-majoritarian difficulty because the resulting decisions are unlikely to have far-reaching precedential impacts, while still resolving the case before the court. Judicial minimalism, however, may lead to decisions that provide limited guidance to future courts, to the Legislative and Executive Branches, and to the public as to what the Constitution permits.

ArtIII.S2.C1.10.6 Last Resort Rule

Under the Last Resort Rule, a court should “not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed.”¹ Accordingly, if a court can resolve a case on both constitutional and non-constitutional grounds, the court should do so on non-constitutional grounds.² By doing so, the court avoids creating constitutional precedent unnecessarily, while giving the political process time to resolve contentious constitutional issues. Because the Last Resort Rule informs the order in which the Court should address constitutional and non-constitutional questions in a case, it is sometimes described as a “rule of judicial procedure.”³

An example of the Court’s use of the Last Resort Rule is its decision in Bond v. United States.⁴ In Bond, federal prosecutors charged Carol Bond with violating Section 229 of the Chemical Weapons Convention Implementation Act (CWCIA) when she caused “a minor thumb burn readily treated by rinsing with water” to her husband’s lover by applying toxic chemicals to the paramour’s car, mailbox, and door knob.⁵ Bond argued that Section 229 (1) “exceeded Congress’s enumerated powers and invaded powers reserved to the States by the Tenth Amendment”⁶ and (2) did not apply to her because “her conduct, though reprehensible, was not at all ‘warlike.’”⁷ Faced with resolving Bond on either statutory or constitutional grounds, the Court, relying on the Last Resort Rule, considered first whether it could resolve the case based on Bond’s argument that Section 229 did not apply to her actions.⁸ After analyzing the CWCIA, the Court concluded that Congress did not intend for Section 229 to apply to Bond’s circumstance.⁹

Based on the Last Resort Rule, the Supreme Court has remanded cases involving constitutional questions to lower courts to see if the case can be resolved on statutory grounds. For example, in Escambia County v. McMillan, the Supreme Court remanded a case affirmed by the appellate court on constitutional grounds because the district court also found a statutory violation.¹⁰ The Supreme Court instructed the appellate court to determine if it could affirm the district court’s decision based on the statutory rather than the constitutional ruling.¹¹ In other cases, the Court has avoided ruling on a constitutional question by deciding a case based on statutory reasons not considered by the lower court.¹² For instance, the Court resolved Siler v. Louisville & Nashville Railroad by ruling that the Railroad Commission violated a Kentucky statute—an issue the Kentucky state court had not considered.¹³ By reaching this conclusion, the Court avoided addressing Siler’s constitutional questions.¹⁴

Siler concerned questions of federal and state law. While the Supreme Court interpreted the Kentucky statute in Siler, the Court often remands cases involving constitutional and state law issues to state courts so they can first resolve state law questions. Consistent with this approach, the Supreme Court has dismissed state court appeals based on constitutional questions if state law can sustain the judgment.¹⁵ Besides avoiding constitutional questions, remanding state law questions to state courts has other advantages: First, the Court avoids using its resources to decide questions where its decisions would be advisory.¹⁶ Second, the Court acknowledges state expertise and autonomy to interpret state laws.¹⁷ Declining to rule on a constitutional question when a ruling on either of two state laws could resolve the case,¹⁸ the Court observed:

The doctrine that the Court will not “anticipate a question of constitutional law in

advance of the necessity of deciding it” . . . is a well-settled doctrine of this Court

which, because it carries a special weight in maintaining proper harmony in

federal-state relations, must not yield to the claim of the relatively minor

inconvenience of postponement of decision.¹⁹

Third, the Court avoids having to rule on unfamiliar state law. In Spector Motor Service v. McLaughlin, the Court ruled that federal litigation should be held pending state court resolution of “intertwined” local law.²⁰ Justice Felix Frankfurter stated:

[W]e have insisted that federal courts do not decide questions of constitutionality on

the basis of preliminary guesses regarding local law. Avoidance of such guesswork, by

holding the litigation in the federal courts until definite determinations on local law

are made by the state courts, merely heeds this time-honored canon of constitutional

adjudication.²¹

The Court has used the Last Resort Rule to avoid politically contentious issues. For example, in Railroad Commission of Texas v. Pullman Co., the Court directed the parties to litigate their state law questions in state court and ordered the lower federal court to hold the federal case in abeyance pending the state litigation. By doing this, the Court avoided ruling on the politically charged issue of whether the Railroad Commission of Texas violated the Constitution by requiring white Pullman conductors, and not black Pullman porters, to operate sleeping cars. Reasoning that “[s]uch constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy,” Justice Frankfurter stated: “[The equal protection issue] touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.”²²

ArtIII.S2.C1.10.7 Constitutional-Doubt Canon

Posited on the premise that Congress “legislates in the light of constitutional limitations,”¹ the Constitutional-Doubt Canon provides that federal courts should construe statutes so that they do not violate the Constitution.² Describing the Constitutional-Doubt Canon, Justice Louis Brandeis stated: “When the validity of an act . . . is drawn in question, and even if a serious doubt of constitutionality is raised . . . [the Court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.”³ Consequently, if a statute is susceptible to two plausible interpretations, one of which violates the Constitution, the Constitutional-Doubt Canon instructs courts to choose the interpretation consistent with the Constitution.⁴ If the statute is not susceptible to a plausible constitutional interpretation, the Constitutional-Doubt Canon is inapplicable.⁵ The Constitutional-Doubt Canon cannot be construed to make a statute broader⁶ or be applied to Executive actions.⁷

The Constitutional-Doubt Canon provides a way for the Court to avoid ruling on constitutional questions that are contentious or where the Court’s interpretation would meet with general, public disfavor. By choosing to interpret a statute to conform with constitutional requirements, the Court communicates to Congress, in effect, what the Court believes the Constitution requires. As Congress has the power to amend law, if Congress disagrees with how the Court has interpreted a statute, Congress can revise the statute. While this leaves open the possibility that the Court will have to revisit the constitutional question in the context of the revised statute, the Constitutional-Doubt Canon has allowed the issue to be publicly vetted further and possibly resolved through the political process. If Congress does not amend the statute, the Court’s constitutionally compliant interpretation of the statute governs despite another interpretation having possibly been a more natural reading of the statute.

The Court has stressed that the Constitutional-Doubt Canon does not give courts leeway to interpret a statute in a manner that effectively rewrites the statute to conform to the Constitution.⁸ In United States v. Locke, the Court stated: “[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.”⁹ Instead, applying conventional tools of statutory interpretation, the Court must find the statute to be subject to two valid interpretations. In Jennings v. Rodriguez, the Court stated: “The canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’”¹⁰

The Constitutional-Doubt Canon has been criticized as incentivizing the Court to interpret statutes in ways that appear to defy the statute’s express language in order to avoid resolving contentious constitutional questions.¹¹ However, the Court may believe that a political, rather than judicial, resolution to certain issues would be preferable for the Nation. For instance, in United States v. Seeger¹² and Welsh v. United States,¹³ the Court was confronted with whether the conscientious objector provisions of Section 6(j) of the Universal Military Training and Service Act violated the Constitution’s Establishment and Free Exercise Clauses. Among other things, Section 6(j) specified “belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code” for conscientious-objector status.¹⁴

Using the Constitutional-Doubt Canon, the Court avoided ruling on what the Establishment and Free Exercise Clauses consider “religion” in Seeger and Welsh, allowing more time for public consensus to form on the issue. In Seeger, the draft board denied conscientious-objector status to Daniel Seeger because he did not meet the Section 6(j) requirement of having beliefs based on a Supreme Being. Despite Section 6(j) expressly precluding beliefs based on “philosophical views” or a “personal moral code,” the Court interpreted Section 6(j)’s “belief in a relation to a Supreme Being” requirement to cover Seeger’s “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.”¹⁵ By finding the draft board to have misread Section 6(j), the Court avoided addressing the implications of the case for the Establishment and Free Exercise Clauses, while finding Seeger entitled to conscientious-objector status. Hinting at how the Court might have resolved the case on constitutional grounds, the Court noted that “[t]his construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.”¹⁶

The Supreme Court’s Section 6(j) interpretation in Seeger, however, provided limited guidance to draft boards on how to distinguish persons with “essentially political, sociological, or philosophical views”¹⁷ who did not qualify for conscientious-objector status from those with “[a] sincere and meaningful belief . . . parallel to that filled by the God of those admittedly qualifying for exemption”¹⁸ who did. The result was that several years later the Court was confronted with a near replica of Seeger. In Welsh, Elliott Ashton Welsh II challenged the draft board’s denial of conscientious objector status under Seeger.¹⁹ Welsh, however, characterized his beliefs as not religious.²⁰ Revisiting Section 6(j), the Court construed it to cover individuals, like Welsh, “whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war”²¹ notwithstanding Section 6(j)’s express language that “essentially political, sociological, or philosophical views or a merely personal moral code”²² did not qualify for conscientious-objector status. In short, the Seeger and Welsh Courts essentially interpreted Section 6(j)’s definition of religious belief to encompass theistic and non-theistic worldviews depending on “whether the beliefs professed by a registrant are sincerely held and whether they are, in [the conscientious objector applicant’s] own scheme of things, religious”²³ despite Congress’s express language in Section 6(j) excluding “political, sociological, or philosophical views, or a merely personal moral code.”²⁴

One criticism of the Constitutional-Doubt Canon is that it can result in tenuous statutory interpretations that undermine the Court’s credibility and defeat the purpose of judicial review to “declare all acts contrary to the manifest tenor of the Constitution void.”²⁵ For instance, in his concurring opinion in Welsh, Justice John Marshall Harlan II expressed dismay with the Court’s use of statutory construction in Seeger and Welsh,²⁶ stating: “[T]he liberties taken with the statute both in Seeger and today’s decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid all possible constitutional infirmities in them.”²⁷ Justice Harlan observed that the natural reading of Section 6(j) and its legislative history clearly indicated Congress’s intent that conscientious-objector status be limited to those whose beliefs were theistic. The result of the Court’s interpretations, in Justice Harlan’s view, deprived Section 6(j) of “all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution.”²⁸ Nevertheless, the Constitutional-Doubt Canon provided a way for the Court to return the contentious issue to the political branches for further debate and consideration.