I have been an avid reader and occasionally poster on Dkos 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. Without further ado, her is my first post.
The doctrine of Constitutional Doubt or Constitutional Avoidance is a very simple doctrine. It is a cannon of construction that requires a court to construe a statute to avoid constitutional questions, so long as it is reasonable to do so. At the threshold, there must be two reasonable ways to construe the statute, with one reading raising constitutional questions and the other not raising constitutional questions. It requires an a priori judgment. The Court must decide whether a certain reading of the Statute might run afoul of the Constitution to avoid the more perilous question of whether that reading actually does violate the Constitution. So, oddly enough, to avoid Constitutional questions, the Court needs to ask Constitutional questions.
In short, the Constitutional Doubt doctrine requires a court – faced with two or more reasonable constructions of a statute – to construe the statute in a way that avoids constitutional questions. I will use a simple example to illustrate the doctrine.
Say that a state statute read as follows: "All children must attend school until they reach 12 years of age." In this statute, the term "school" is vague. Does it mean that children must attend public school? Does it mean that children can attend private or public school? Or, does it mean that children can be home schooled? A court interpreting this statute must determine what type of "school" children must attend. In a line of cases stemming back to Pierce v. Society of Sisters 268 U.S. 510 (1925), the Supreme Court has held that parents have a right to direct the upbringing of their children, including decisions regarding education. In light of this, a court might interpret "school" to mean any school of a parents choosing. This interpretation would avoid any possibility of trampling on a parents right to direct the upbringing of their children. This is an exceedingly simply example of how a Court might use the doctrine. Usually, it is not so clear that a statute – read one or the other – would violate the constitution.
This covers the basics of the doctrine of Constitutional Doubt. In later posts, I will delve into the intricacies of the Doctrine.
Cross-posted at Constitutional Doubt