Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Posited on the premise that Congress “legislates in the light of constitutional limitations,” 1 the Constitutional-Doubt Canon provides that federal courts should construe statutes so that they do not violate the Constitution.2 Describing the Constitutional-Doubt Canon, Justice Louis Brandeis stated: “When the validity of an act . . . is drawn in question, and even if a serious doubt of constitutionality is raised . . . [the Court] will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” 3 Consequently, if a statute is susceptible to two plausible interpretations, one of which violates the Constitution, the Constitutional-Doubt Canon instructs courts to choose the interpretation consistent with the Constitution.4 If the statute is not susceptible to a plausible constitutional interpretation, the Constitutional-Doubt Canon is inapplicable.5 The Constitutional-Doubt Canon cannot be construed to make a statute broader6 or be applied to Executive actions.7

The Constitutional-Doubt Canon provides a way for the Court to avoid ruling on constitutional questions that are contentious or where the Court’s interpretation would meet with general, public disfavor. By choosing to interpret a statute to conform with constitutional requirements, the Court communicates to Congress, in effect, what the Court believes the Constitution requires. As Congress has the power to amend law, if Congress disagrees with how the Court has interpreted a statute, Congress can revise the statute. While this leaves open the possibility that the Court will have to revisit the constitutional question in the context of the revised statute, the Constitutional-Doubt Canon has allowed the issue to be publicly vetted further and possibly resolved through the political process. If Congress does not amend the statute, the Court’s constitutionally compliant interpretation of the statute governs despite another interpretation having possibly been a more natural reading of the statute.

The Court has stressed that the Constitutional-Doubt Canon does not give courts leeway to interpret a statute in a manner that effectively rewrites the statute to conform to the Constitution.8 In United States v. Locke, the Court stated: “[w]e cannot press statutory construction ‘to the point of disingenuous evasion’ even to avoid a constitutional question.” 9 Instead, applying conventional tools of statutory interpretation, the Court must find the statute to be subject to two valid interpretations. In Jennings v. Rodriguez, the Court stated: “The canon of constitutional avoidance ‘comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.’” 10

The Constitutional-Doubt Canon has been criticized as incentivizing the Court to interpret statutes in ways that appear to defy the statute’s express language in order to avoid resolving contentious constitutional questions.11 However, the Court may believe that a political, rather than judicial, resolution to certain issues would be preferable for the Nation. For instance, in United States v. Seeger12 and Welsh v. United States,13 the Court was confronted with whether the conscientious objector provisions of Section 6(j) of the Universal Military Training and Service Act violated the Constitution’s Establishment and Free Exercise Clauses. Among other things, Section 6(j) specified “belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code” for conscientious-objector status.14

Using the Constitutional-Doubt Canon, the Court avoided ruling on what the Establishment and Free Exercise Clauses consider “religion” in Seeger and Welsh, allowing more time for public consensus to form on the issue. In Seeger, the draft board denied conscientious-objector status to Daniel Seeger because he did not meet the Section 6(j) requirement of having beliefs based on a Supreme Being. Despite Section 6(j) expressly precluding beliefs based on “philosophical views” or a “personal moral code,” the Court interpreted Section 6(j)'s “belief in a relation to a Supreme Being” requirement to cover Seeger’s “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” 15 By finding the draft board to have misread Section 6(j), the Court avoided addressing the implications of the case for the Establishment and Free Exercise Clauses, while finding Seeger entitled to conscientious-objector status. Hinting at how the Court might have resolved the case on constitutional grounds, the Court noted that “[t]his construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets.” 16

The Supreme Court’s Section 6(j) interpretation in Seeger, however, provided limited guidance to draft boards on how to distinguish persons with “essentially political, sociological, or philosophical views” 17 who did not qualify for conscientious-objector status from those with “[a] sincere and meaningful belief . . . parallel to that filled by the God of those admittedly qualifying for exemption” 18 who did. The result was that several years later the Court was confronted with a near replica of Seeger. In Welsh, Elliott Ashton Welsh II challenged the draft board’s denial of conscientious objector status under Seeger.19 Welsh, however, characterized his beliefs as not religious.20 Revisiting Section 6(j), the Court construed it to cover individuals, like Welsh, “whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war” 21 notwithstanding Section 6(j)'s express language that “essentially political, sociological, or philosophical views or a merely personal moral code” 22 did not qualify for conscientious-objector status. In short, the Seeger and Welsh Courts essentially interpreted Section 6(j)'s definition of religious belief to encompass theistic and non-theistic worldviews depending on “whether the beliefs professed by a registrant are sincerely held and whether they are, in [the conscientious objector applicant’s] own scheme of things, religious” 23 despite Congress’s express language in Section 6(j) excluding “political, sociological, or philosophical views, or a merely personal moral code.” 24

One criticism of the Constitutional-Doubt Canon is that it can result in tenuous statutory interpretations that undermine the Court’s credibility and defeat the purpose of judicial review to “declare all acts contrary to the manifest tenor of the Constitution void.” 25 For instance, in his concurring opinion in Welsh, Justice John Marshall Harlan II expressed dismay with the Court’s use of statutory construction in Seeger and Welsh,26 stating: “[T]he liberties taken with the statute both in Seeger and today’s decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid all possible constitutional infirmities in them.” 27 Justice Harlan observed that the natural reading of Section 6(j) and its legislative history clearly indicated Congress’s intent that conscientious-objector status be limited to those whose beliefs were theistic. The result of the Court’s interpretations, in Justice Harlan’s view, deprived Section 6(j) of “all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution.” 28 Nevertheless, the Constitutional-Doubt Canon provided a way for the Court to return the contentious issue to the political branches for further debate and consideration.

Footnotes

1

Rust v. Sullivan, 500 U.S. 173, 191 (1991). See also Rostker v. Goldberg, 453 U.S. 57, 64 (1981) ( “The Congress is a coequal branch of government whose Members take the same oath as [the judiciary] to uphold the Constitution of the United States.” ).

2

McFadden v. United States, 576 U.S. 186, 197 (2015) ( “[T]his canon ‘is a tool for choosing between competing plausible interpretations of a provision.’” (citations omitted)); Warger v. Shauers, 574 U.S. 40, 50 (2014) ( “[The canon] ‘has no application in the absence of . . . ambiguity.’” (citations omitted)); Scales v. United States, 367 U.S. 203, 211 (2009) ( “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.” ); Aptheker v. Sec’y of State, 378 U.S. 500, 515 (1964) ( “[T]his Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.” ). See also Clark v. Martinez, 543 U.S. 371, 381 (2005); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 494 (2001).

3

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). See United States v. Palomar-Santiago, No. 20-437, slip op. at 7 (U.S. May 24, 2021) ( “Courts should indeed construe statutes ‘to avoid not only the conclusion that [they are] unconstitutional, but also grave doubts upon that score.’” (citations omitted)); Nielsen v. Preap, No. 16-1363, slip op. at 25 (U.S. Mar. 19, 2019) ( “This canon provides that '[w]hen a serious doubt is raised about the constitutionality of an act of Congress, . . . this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” (citations omitted)); Crowell v. Benson, 285 U.S. 22, 62 (1932) ( “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” ); Blodgett v. Holden, 275 U.S. 142, 148 (1927) ( “[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt the rule is the same.” ); United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) ( “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.” ).

4

Jennings v. Rodriguez, No. 15-1204, slip op. at 12 (U.S. Feb. 27, 2018) ( “When ‘a serious doubt’ is raised about the constitutionality of an act of Congress, ‘it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.’” (citations omitted)); Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998) (construction of statute that avoids invalidation best reflects congressional will); United States v. Harris, 347 U.S. 612, 618 (1954) ( “[I]f this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.” ); United States v. Rumely, 345 U.S. 41, 45 (1953) (noting canon is controlling “in the choice of fair alternatives” (citations omitted)); Michaelson v. United States, 266 U.S. 42 (1924) (construing Clayton Act narrowly to avoid constitutional questions); United States ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 407 (1909) ( “[W]hen the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.” ). See also Bond v. United States, 572 U.S. 844 (2014); Skilling v. United States, 561 U.S. 358, 405–06 & n.40 (2010); Gonzales v. Carhart, 550 U.S. 124, 153–54 (2007); Zadvydas v. Davis, 533 U.S. 678 (2001); United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994); Peretz v. United States, 501 U.S. 923, 929–30 (1991); Gomez v. United States, 490 U.S. 858, 864 (1989); Pub. Citizen v. Dep’t of Just., 491 U.S. 440, 465–67 (1989); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); Boos v. Barry, 485 U.S. 312, 330–331 (1988); Lowe v. SEC, 472 U.S. 181, 227 (1985) (White, J., concurring); Schneider v. Smith, 390 U.S. 17, 26 (1968); Crowell v. Benson, 285 U.S. 22, 62 (1932); Jin Fuey Moy, 241 U.S. at 401; Hooper v. California, 155 U.S. 648, 657 (1895).

5

Jennings, No. 15-1204, slip op. at 12 ( “In the absence of more than one plausible construction, the canon simply ‘has no application.’” (citations omitted)); Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) ( “But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.” ).

6

United States v. Davis, No. 18-431, slip op. at 17 (U.S. June 24, 2019) ( “[W]hen presented with two “fair alternatives,” this Court has sometimes adopted the narrower construction of a criminal statute to avoid having to hold it unconstitutional if it were construed more broadly. But no one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it. Yet that is exactly what the government seeks here.” ).

7

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ( “The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. We know of no precedent for applying it to limit the scope of authorized executive action.” ).

8

Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, slip op. at 29 (U.S. June 19, 2020) ( “Constitutional avoidance is not a license to rewrite Congress’s work to say whatever the Constitution needs it to say in a given situation. Without a proffered interpretation that is rooted in the statutory text and structure, and would avoid the constitutional violation we have identified, we take Congress at its word . . . .” ); Jennings, No. 15-1204, slip op. at 14 ( “Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to ‘choos[e] between competing plausible interpretations of a statutory text.’” (citations omitted)); McFadden v. United States, 576 U.S. 186, 197 (2015); Warger v. Shauers, 574 U.S. 40, 50 (2014); Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926) ( “[A]mendment may not be substituted for construction, and . . . a court may not exercise legislative functions to save the law from conflict with constitutional limitation.” ).

9

United States v. Locke, 471 U.S. 84, 96 (1984) (quoting Moore Ice Cream Co., 289 U.S. at 379).

10

Jennings, No. 15-1204, slip op. at 842 (citations omitted). See also Bartlett v. Strickland, 556 U.S. 1 (2009).

11

See, e.g., Ullman v. United States, 350 U.S. 422, 43 (1956); Bond v. United States, 572 U.S. 844, 867–68 (2014) (Scalia, J., dissenting) (commenting that Court applied the Constitutional-Doubt Canon incorrectly when it interpreted the Chemical Weapons Convention Implementation Act).

12

United States v. Seeger, 380 U.S. 163 (1965).

13

Welsh v. United States, 398 U.S. 333 (1970).

14

Seeger, 380 U.S. at 165 (emphasis added); see also Act of June 24, 1948, ch. 625, tit. I, § 6(j), 62 Stat. 609, 612–13 (amended by the Military Selective Service Act of 1967, Pub. L. No. 90-40, § 5, 81 Stat. 100, 104 (codified at 50 U.S.C. § 3806(j))).

15

Seeger, 380 U.S. at 176.

16

Id.

17

Act of June 24, 1948, ch. 625, tit. I, § 6(j), 62 Stat. 609, 612–13 (amended by the Military Selective Service Act of 1967, Pub. L. No. 90-40, § 5, 81 Stat. 100, 104 (codified at 50 U.S.C. § 3806(j))).

18

Seeger, 380 U.S. at 176.

19

Welsh v. United States, 398 U.S. 333 (1970). Mr. Welsh had been sentenced to prison for three years for “refusing to submit to induction into the Armed Forces” on June 1, 1966. Welsh, 398 U.S. at 335. In 1967, Congress revised the conscientious objector exclusion provision, deleting language providing that “[r]eligious training and belief” means “an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation” so that the statute provided that “'religious training and belief’ does not include essentially political, sociological, or philosophical views or a merely personal code.” Military Selective Service Act of 1967, Pub. L. No. 90-40, § 7, 81 Stat. 100, 104 (codified at 50 U.S.C. § 3806(j)). On September 23, 1968, the Ninth Circuit denied Mr. Welsh’s appeal of his conviction. Welsh v. United States, 404 F.2d 1078 (9th Cir. 1968). In its Welsh decision, the Supreme Court referenced Section 6(j) of the Universal Military Training and Service Act “as it read during the period relevant to this case,” which was the pre-1967 language of Section 6(j).

20

Welsh, 398 U.S. at 341. The opinion notes that while Welsh “originally characterized his beliefs as nonreligious, he later upon reflection . . . declared that his beliefs were ‘certainly religious in the ethical sense of the word.’” Id.

21

Id. at 344.

22

Act of June 24, 1948, ch. 625, tit. I, § 6(j), 62 Stat. 609, 612–13 (amended by the Military Selective Service Act of 1967, Pub. L. No. 90-40, § 5, 81 Stat. 100, 104 (codified at 50 U.S.C. § 3806(j))).

23

Seeger, 380 U.S. at 185; Welsh, 398 U.S. at 339.

24

Act of June 24, 1948, ch. 625, tit. I, § 6(j), 62 Stat. 609, 612–13 (amended by the Military Selective Service Act of 1967, Pub. L. No. 90-40, § 5, 81 Stat. 100, 104 (codified at 50 U.S.C. § 3806(j))).

25

The Federalist No. 78 (Alexander Hamilton).

26

Welsh, 398 U.S. at 344 (Harlan, J., concurring) ( “Candor requires me to say that I joined the Court’s opinion in [Seeger] only with the gravest misgiving as to whether it was a legitimate exercise in statutory construction, and today’s decision convinces me that in doing so I made a mistake which I should now acknowledge.” ).

27

Id. at 345.

28

Id. at 354.