Constitutional Avoidance as Constitutional Conformation

Abstract

In the United States, a long line of Supreme Court decisions, of which Ashwander v. TVA (1936) is most prominent, purports to establish the principle that federal courts should avoid making constitutional decisions if a non-constititional route to the same outcome is available. But this principle -- often labeled the principle of constitutional avoidace -- is misnamed. In order for a court to avoid a constitutional ruling, it must identify the constitutional question. And in doing so, it makes rather than avoids a constitutional decision. According, the American practice of constitutional avoidance turns out to resemble the practice in other jurisdictions of interpreting states in a way that makes them conform to constitutional requirements.

Keywords: constitutional conformation, constitutional avoidance, statutory interpretation, Ashwander