Constitutional avoidance

In Ashwander v. Tennessee Valley Authority (1936), the Supreme Court of the United States established a seven-rule test for the justiciability of controversies presenting constitutional questions: The avoidance doctrine flows from the canon of judicial restraint and is intertwined with the debate over the proper scope of federal judicial review and the allocation of power among the three branches of the federal government and the states.

The avoidance of unnecessary constitutional decisions has been urged as early as 1833 by Chief Justice of the United States John Marshall in Ex parte Randolph, 20 F. Cas.

Although Justice Louis Brandeis's concurring opinion in Ashwander is the primary case for the modern formulation of the avoidance doctrine, Marshall had cautioned that no questions of "greater delicacy" may be presented to the federal judiciary than those involving a constitutional challenge to a legislative act.

The doctrine was adopted heartily by Justice Felix Frankfurter, who was attacked as too "liberal" while he was a Harvard scholar and actively supported the New Deal programs.

[8][9] That tool of judicial restraint espoused by "liberals" was largely inspired by the response of Brandeis and Frankfurter to the activist "conservative" Supreme Court in the 1930s, which struck down legislation as infringing on freedom of contract and other doctrines such as substantive due process.