Constitutional avoidance

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In United States constitutional law, the doctrine of constitutional avoidance dictates that a federal court should refuse to rule on a constitutional issue if the case can be resolved on a nonconstitutional basis. When a federal court is faced with a choice of ruling on a statutory, regulatory or constitutional basis, the Supreme Court has instructed the lower court to decide the federal constitutional issue only as a last resort: "The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

The avoidance doctrine flows from the canon of judicial self-restraint, and is intertwined with the debate over the proper scope of federal judicial review and the allocation of power among the three branches of the federal government and the states. It is also premised on the "delicacy" and "finality" of judicial review of legislation for constitutionality, concerns regarding the credibility of the federal courts, and the "paramount importance of constitutional adjudication in our system."[1] These elements demonstrate a significant overlap between the avoidance doctrine and other jurisdictional or justiciability barriers. The avoidance doctrine reflects such other justiciability doctrines as standing and ripeness, and permeates jurisdictional doctrines such as Pullman abstention and the adequate and independent state ground doctrine.

Historical development of the avoidance doctrine[edit]

Justice Louis D. Brandeis

The avoidance of unnecessary constitutional decisions has been urged as early as 1833 by Chief Justice John Marshall in Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).

Although Brandeis's concurring opinion in Ashwander is the primary cite for the modern formulation of the avoidance doctrine, Chief Justice Marshall had cautioned previously that no questions of "greater delicacy" can be presented to the federal judiciary than those involving a constitutional challenge to a legislative act.[2] He instructed that if such questions "become indispensably necessary to the case," they must be decided, but "if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed." In Ex parte Randolph, the Chief Justice, while riding circuit, considered a challenge to a congressional act which provided that Treasury agents could issue warrants for military officers charged with disbursing public funds who failed to pay and settle their accounts at the Treasury Department. The court concluded that the terms of the act did not apply to an officer temporarily acting as the ship's purser due to the death of the regularly commissioned purser and granted his petition for habeas corpus.[3] Justice Louis D. Brandeis's concurring opinion in Ashwander provides the most significant formulation of the avoidance doctrine, even though the Brandeis formulation had no effect on the outcome of the case because the Justice concurred in the plurality opinion, and the plurality considered and decided the properly presented constitutional issues. In Ashwander, Justice Brandeis identified seven components of the avoidance doctrine.[4]

Justice Stevens has called the Ashwander concurrence "one of the most respected opinions ever written by a Member of this Court."[5] Brandeis, a leader of the progressive movement prior to his judicial appointment offered a broad framing of the avoidance doctrine. The doctrine was adopted heartily by Felix Frankfurter, who was attacked as too "liberal" while a Harvard scholar and an active supporter of New Deal programs.[6] This tool of judicial restraint espoused by "liberals" was in large part inspired by the response of Brandeis and Frankfurter to the activist "conservative" Court of the 1930s, which struck down legislation as infringing on freedom of contract and other doctrines such as substantive due process.[7] In recent years, doctrines of judicial restraint have more often been criticized when used by "conservative" jurists.[8]

See also[edit]


  1. ^ Rescue Army v. Municipal Court of L.A., 331 U.S. 549, 571 (1947) (reciting a non-exhaustive list of grounds supporting the avoidance doctrine); see also Paul A. Freund (1957). "Introduction". In Alexander M. Bickel (ed.). The Unpublished Opinions of Mr. Justice Brandeis. University of Chicago Press. p. xvii. ISBN 978-0226046020. (Judicial self-restraint is premised on an "awareness of the limits of human capacity, the fallibility of judgment, the need for diffusion of power and responsibility, the indispensability of husbanding what powers one has, of keeping within bounds if action is not to outrun wisdom.").
  2. ^ Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558).
  3. ^ Ex parte Randolph, 20 F. Cas. 242 (C.C.D. Va. 1833) (No. 11,558).
  4. ^ Ashwander v. Tennessee Valley Auth., 297 U.S. 298, 346–48 (1936).
  5. ^ Delaware v. Van Arsdall, 475 U.S. 673, 693 (1986) (Stevens, J., dissenting).
  6. ^ See Helen Shirley Thomas (1960). Felix Frankfurter: Scholar on the Bench. The Johns Hopkins University Press. pp. 19–20. ISBN 978-0801806285.; Melvin I. Urofsky (1991). Felix Frankfurter: Judicial Restraint and Individual Liberties. Twayne's Twentieth-Century American Biography Series. Twayne Pub. pp. 20–22. ISBN 978-0805777741.
  7. ^ Joseph P. Lash (1975). "Introduction". From the Diaries of Felix Frankfurter. W. W. Norton & Co. pp. 57–58. ISBN 978-0393074888.
  8. ^ See, e.g., Gerald M. Gallivan (1985). "Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint". Land and Water Law Review. 20: 159.; Steven M. Kahaner (1988). "Separation of Powers and the Standing Doctrine: The Unwarranted Use of Judicial Restraint". George Washington Law Review. 56: 104.; Christopher A. Crain (1990). "Note, Judicial Restraint and the Non-Decision in Webster v. Reprod. Health Servs". Harvard Journal of Law & Public Policy. 13: 263.; see also Linda Greenhouse (July 22, 1993). "The Supreme Court: A Sense of Judicial Limits". The New York Times. p. A1. (referring to the Ginsburg nomination and noting surprise at a "liberal" jurist espousing techniques of judicial restraint).