Constitutional Avoidance Canon

Definition / Rule

The constitutional avoidance canon directs courts to construe statutes so as to avoid serious constitutional questions, where the statute is reasonably susceptible to such a construction. It is a canon of statutory interpretation, not a constitutional rule — the Court interprets the statute to avoid the constitutional issue rather than reaching and deciding it. The canon comes in two versions: a classical version and a modern (serious doubts) version.

Two Versions

Classical Avoidance

When a statute is susceptible to two readings — one constitutional and one unconstitutional — the court chooses the constitutional interpretation. The constitutional reading must be plausible; courts will not strain statutory language beyond recognition.

Modern (Serious Doubts) Avoidance

Ashwander v. Tennessee Valley Authority (1936) (Brandeis concurrence) — Courts should avoid statutory constructions that raise “serious constitutional doubts,” even if the statute might ultimately survive constitutional challenge. The canon applies proactively, before any constitutional violation has actually been found.

This is the dominant modern version: if a natural reading of the statute would raise serious constitutional doubts, the court adopts a narrower reading that avoids those doubts, provided the narrower reading is “fairly possible.”

Elements / Application

1. Identify a constitutional concern — What serious constitutional question would the broad reading raise? Must be a genuine, substantial constitutional problem, not a frivolous one.
2. Identify an alternative reading — Is there a narrower reading that avoids the constitutional problem?
3. Is the alternative “fairly possible”? — The alternative reading must be plausible from the statutory text and structure; courts cannot adopt a reading that is plainly contrary to the statute’s meaning.
4. Adopt the narrower reading — Without deciding the constitutional question.

Key Cases

• Ashwander v. Tennessee Valley Authority (1936) — Brandeis concurrence articulated the modern avoidance principle as part of rules for constitutional adjudication.
• NFIB v. Sebelius (2012) — Court construed the individual mandate as a tax rather than a command under the Commerce Clause. Roberts avoided holding the mandate unconstitutional by reading it as an exercise of the taxing power. Classic modern avoidance.
• Edward J. DeBartolo Corp. v. Florida Gulf Coast Building Trades Council (1988) — NLRA construed to avoid First Amendment problems with a broad prohibition on leafleting.
• Zadvydas v. Davis (2001) — Immigration detention statute construed to impose a 6-month limit to avoid serious Fifth Amendment due process concerns with indefinite detention.
• Bond v. United States (2014) — Chemical weapons statute construed narrowly to avoid federalism concerns about applying treaty-implementing legislation to a local domestic dispute.

Relationship to Other Canons

• Clear Statement Rules (Federalism) — Specific application of avoidance logic; require Congress to speak clearly before statutes intrude on federalism or sovereign immunity values.
• Lenity — Criminal law analog; ambiguities in criminal statutes resolved in favor of the defendant.
• Last resort / avoidance — Brandeis’s Ashwander rules require courts to decide constitutional questions only as a last resort.

Policy

Judicial restraint: The canon preserves judicial capital and avoids unnecessary constitutional rulings. Courts should decide constitutional questions only when necessary.

Separation of powers: By avoiding constitutional rulings, courts leave constitutional questions to be worked out in the political process (Congress can react to a statutory interpretation much more easily than to a constitutional ruling).

Critique: Modern avoidance may lead courts to distort statutory meaning, effectively rewriting legislation to avoid constitutional questions. This itself raises separation of powers concerns — courts may be substituting their judgment for Congress’s under the guise of interpretation. Scalia and others have argued avoidance should be limited to the classical version.