I have been an avid reader and occasionally poster on Daily Kos since 2006. I am starting a Constitutional law blog. Since I know people around here are very inserted in the law generally, I plan on cross-posting my first few posts. The blog is titled Constitutional Doubt. The format is pretty simple. Every week I will write a post on the doctrine of Constitutional Doubt and throughout the week I will post on various other legal issues. The blog is really meant to be a learning tool, so if you want to learn more about Constitutional law, you should find it to be a good source. This is my second post on the subject. Here is a link to my first post. I recommending reading it before delving into this post.
Among other things, the doctrine of constitutional doubt serves separation of powers principles. First, the doctrine engenders respect for Congress. It forces the Court to presume that legislators are well-aware of the strictures of the Constitution and use this acumen to craft statutes. Thus, any ambiguities in congressionally enacted statutes should be construed to comport with the Constitution. Essentially, it presumes that legislators are able-minded individuals who are always looking to the constitution when enacting federal law. An opposite presumption would necessarily characterize the legislature as constitutionally inept, for it would be presumed that ambiguities were intended to violate the constitution – indicating that legislators are unaware of the complexity of the constitution or cannot faithfully execute their duty to uphold it. Obviously, this would be a very disrespectful presumption. So, in this vein, the doctrine serves separation of powers principles in that it assumes all branches of government are equal in knowledge and capacity to employ that knowledge. Second, and concomitantly, by construing statutes to conform to the Constitution the Court avoids overturning laws that were passed through the democratic process. The doctrine keeps the Court from over-meddling in the other branches business. It keeps conflict between the branches to a minimum.
However, the doctrine arguable cuts the other way – construing statutes to avoid constitutional problems might actually do disservice to separation of powers principles. Offense to the legislature will result if the Court adopts a statutory interpretation that is not consonant with the legislature’s intent or with the plain language of the statute. This might create a tense relationship between the Court and Congress. Additionally, in this situation the Court steps into a quasi-legislative role. Instead of adopting the legislature’s statute as intended, the Court re-writes a statute in a way that fits the Courts’ conception of the Constitution. The plainer the meaning of the statute is, the more offensive this is to separation of powers. In the extreme case – where the Court adopts a statutory interpretation that is clearly at odds with the plain language of the statute – the Court essentially does the legislature’s work. It writes a statute. This might have particularly pernicious incentives. Knowing that the Court uses the doctrine of constitutional doubt, Congress might sloppily draft statutes with the expectation that the Court will step in and clean up their work. In theory, this could shift functionally legislative work to the Court and thus do disservice to the separation of powers.
Thus, while separation of powers is a main justification for the doctrine, it certainly is debatable whether or not the doctrine actually serves such separation of powers principles. For a general discussion of the perils of over-using the doctrine of constitutional doubt, see Justice Scalia’s dissent in INS v. St. Cyr, 533 U.S. 289 (2001).
Cross-posted at Constitutional Doubt.