Avoiding Constitutional Questions Versus Avoiding Unconstitutionality
In this month’s issue, Professor Neal Katyal and Thomas Schmidt join a distinguished group of lawyers and judges who criticize the “canon of constitutional avoidance” — the idea that courts should try to interpret statutes so as to avoid raising difficult questions of constitutional law. Although the Supreme Court has described this canon as a “settled policy,” the canon exists more by dint of repetition than by force of argument. Its critics include the most eminent circuit judge of the last generation, two of the most eminent circuit judges of the present generation, and a host of thoughtful scholars. All three of the judges just mentioned, and many of the scholars, have criticized only the canon that favors avoiding serious constitutional questions. They have not objected to a separate canon that favors avoiding actual unconstitutionality — the longstanding principle that courts should not lightly interpret a statute in a way that makes it unconstitutional if some other interpretation is available.