NCJ Number
163695
Date Published
1996
Length
28 pages
Annotation
This analysis of one of the principles set forth in the U.S. Supreme Court's decision in Ashwander v. Tennessee Valley Authority concludes that continued adherence to this principle of construing a statute so as to avoid having to make a constitutional decision is likely to be counterproductive.
Abstract
In the Ashwander decision Justice Brandeis stated seven principles for the avoidance of constitutional questions. Although the view that courts should be reluctant to intrude onto the prerogatives of the elected branches of government is appropriate, the Ashwander principle is based on an incorrect premise. Currently, disputes centered on the interpretation of Federal laws occupy an increasingly larger percentage of the Court's cases. As a result, this Ashwander principle has become increasingly important. The decision in the child pornography case of United States v. X-Citement Video, Inc. demonstrated that judicial invalidation and judicial interpretation are equally invasive into legislative prerogatives. Thus, the continued adherence to Ashwander is likely to be counterproductive. Little would be lost by abandoning Ashwander entirely. If that happened courts could focus directly on whether judges should substitute their judgment for that of Congress in any particular case. Footnotes