Two Views on Constitutional Avoidance in Stop the Beach

June 17th, 2010

The doctrine of constitutional avoidance states, basically, that if the Court need not reach an issue of major constitutional significance, the Court won’t. The Supreme Court follows this doctrine except when they don’t want to follow it. Today is a perfect example.

This term we have been treated to a healthy dose of constitutional avoidance.

In Citizens United v. FEC, the Court considered whether it was necessary to strike down the entire provision of the campaign finance law, or just interpret it narrowly. I’m not sure if the views expressed in that opinion actually jive with the views expressed today.

Today, in Stop the Beach, the Court considered this issue again, but with various approaches.

Scalia on avoidance:

It is not true that deciding the constitutional question in this case contradicts our settled practice. To the contrary,we have often recognized the existence of a constitutional right, or established the test for violation of such a right(or both), and then gone on to find that the claim at issue fails.

“Assuming without deciding” would be less appropriatehere than it was in many of those earlier cases, which established constitutional rights quite separate from anythat had previously been acknowledged.

Breyer on avoidance:

In the past, Members of this Court have warned us that,when faced with difficult constitutional questions, we should “confine ourselves to deciding only what is neces-sary to the disposition of the immediate case.” Whitehouse
v. Illinois Central R. Co., 349 U. S. 366, 373 (1955); see also Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 445 (1988) (“A fundamental and longstand-ing principle of judicial restraint requires that courtsavoid reaching constitutional questions in advance of the necessity of deciding them”); Ashwander v. TVA, 297 U. S. 288, 346–347 (1936) (Brandeis, J., concurring) (“The Court will not anticipate a question of constitutional law inadvance of the necessity of deciding it. It is not the habit of the Court to decide questions of a constitutional natureunless absolutely necessary to a decision of the case” (citations and internal quotation marks omitted)). I heed this advice here. There is no need now to decide more than what the Court decides in Parts IV and V, namely, that the Florida Supreme Court’s decision in this case didnot amount to a “judicial taking.”
So where does this leave us? When do we avoid, and when do we tackle the constitutional question? This will have huge implications for McDonald v. Chicago, as the Court grapples with whether to approach the privileges or immunities clause–an issue that was in the question presented, and ably argued before the Court.