« Eric Segall Asks "What is Originalism?"
Michael Ramsey
| Main | Garrett West: Congress's Arrest Power and the Limits of Liquidation
Michael Ramsey »


Benjamin Flowers: An Essay Concerning Some Problems with the Constitutional-Doubt Canon
Michael Ramsey

Recently published, in the Washington & Lee Law Review Online, Benjamin M. Flowers (Jones Day): An Essay Concerning Some Problems with the Constitutional-Doubt Canon (74 Wash. & Lee L. Rev. Online 248 (2018)).  Here is the abstract:

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.

Agreed.  Regular readers won't be surprised that I have nothing good to say about the constitutional doubt canon.  It seems another made-up bit of judicial imperialism-disguised-as-modesty without foundation in constitutional structure or founding-era practice.  If courts think a statute might be unconstitutional (or that it probably is unconstitutional) their job is to decide whether it is or not.  As Chief Justice Marshall said in Marbury: "It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."  This in turn follows from the oath to support the Constitution (Art. VI, para. 3) and the supremacy clause (Art. VI, para. 2): on one hand, courts must apply the Constitution at the expense of unconstitutional statutes; on the other, they must apply as supreme law statutes that are not unconstitutional.  So if there is constitutional doubt, they need to resolve it, not fail to apply a statute that is close to unconstitutional.

I was disappointed that Justice Scalia and Bryan Garner endorsed the canon in Reading Law (pp. 247-251), albeit a bit weakly.  (I like that they quoted in a footnote Judge Easterbrook's view that the canon is "noxious," "wholly illegitimate" and "a misuse of judicial power").  Scalia and Garner conceded that the canon could not be defended on the basis of finding Congress' intent, and instead claimed it was a "judicial policy of ... minimizing conflicts with the legislature."  But I cannot see how courts would think that they are justified in developing "judicial policy" to not enforce statutes, nor how doing so reduces conflicts with the legislature.

There's a more legitimate canon -- dating at least to Mossman v. Higginson in 1800 -- that statutes may be construed not to be unconstitutional.  In light of this canon, I don't see how the constitutional doubt canon avoids any conflict with the legislature.  Courts can decide if a proffered reading of an ambiguous statute is unconstitutional, and if so, can avoid a conflict with the legislature by construing the statute a different way. What the constitutional doubt canon avoids is the court having to make difficult constitutional calls in close cases.  But making life easy for courts isn't a constitutional value.

More broadly, the avoidance canon illustrates a problem for Reading Law, previously noted by John McGinnis and others.  The book presents a list of canons and pronounces some of them valid and others not valid.  But it never explains a general theory of why some canons are valid and some aren't.  True, some are valid as common sense ways to find the meaning of legal texts, and some are valid as interpretive tools that were in common use in the founding era.  But the constitutional doubt canon isn't either of these (Scalia and Garner's earliest citation of it is from 1909).  

Maybe (as Flowers' essay says at the end) the canon can be defended as a matter of stare decisis.  But I doubt even that.  Surely there is no reliance interest in it.  Its only beneficiaries are judges who don't feel like deciding hard constitutional questions.