Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

Footnotes

1

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346–48 (1936) (Brandeis, J., concurring). The Constitutional-Doubt Canon is sometimes referred to as the Avoidance Canon. For further discussion on the Constitutional Avoidance Doctrine, see Andrew Nolan, Cong. Rsch. Serv., R43706, The Doctrine of Constitutional Avoidance: A Legal Overview (2014), https://crsreports.congress.gov/product/pdf/R/R43706.

2

U.S. Const. art. III, § 2, cl. 1 ( “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” .).

3

Rescue Army v. Mun. Ct. of L.A., 331 U.S. 549, 568 (1947).

4

The Rule Against Feigned or Collusive Lawsuits corresponds to the adversity requirement discussed in ArtIII.S2.C1.5.1 Overview of Adversity Requirement.

5

For discussion on Ripeness, see ArtIII.S2.C1.7.1 Overview of Ripeness Doctrine.

6

For discussion on Standing, see ArtIII.S2.C1.6.1 Overview of Standing.

7

For discussion on Mootness, see ArtIII.S2.C1.8.1 Overview of Mootness Doctrine.

8

Fahey v. Mallonee, 332 U.S. 245, 255 (1947) ( “[I]t is an elementary rule of constitutional law that one may not ‘retain the benefits of the Act while attacking the constitutionality of one of its important conditions.’” ). See also Buck v. Kuykendall, 267 U.S. 307, 316 (1925) ( “[O]ne cannot in the same proceeding both assail a statute and rely upon it. Nor can one who avails himself of the benefits conferred by a statute deny its validity.” (citations omitted)).