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Ashwander Rules

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Ashwander Rules

Why one can’t look to the federal courts to enforce the Constitution.
Many people seek to enforce the Constitution, especially as originally understood, by litigation, but the Supreme Court has repeatedly indicated that it will not resist the other branches if it can avoid doing so, and urges people to seek their remedies through the political process rather than through the courts. This was made clear in the concurring opinion of Justice Brandeis in Ashwander v. T.V.A., 297 U.S. 288 (1936), in which he stated:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions

“is legitimate only in the last resort, and as a necessity in the determination of a real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”

Chicago & Grand Trunk Ry. v. Wellman, 143 U. S. 339, 143 U. S. 345. @Compare 49 U. S. 15.

2. The Court will not

“anticipate a question of constitutional law in advance of the necessity of deciding it.”

Page 297 U. S. 347 Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners, 113 U. S. 33, 113 U. S. 39; [Footnote 2/5] Abrams v. Van Schaick, 293 U. S. 188; Wilshire Oil Co. v. United States,295 U. S. 100. “It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.” Burton v. United States,196 U. S. 283, 196 U. S. 295.

3. The Court will not

“formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

Liverpool, N.Y. & P. S.S. Co. v. Emigration Commissioners, supra; compare Hammond v. Schapp Bus Line, 275 U. S. 164, 275 U. S. 169-172.

4. The Court will not pass upon a constitutional question, although properly presented by the record if there is also present some other ground upon which the case may be disposed of. This rule has found the most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U. S. 175, 213 U. S. 191; Light v. United States, 220 U. S. 523, 220 U. S. 538. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on independent state ground. Berea College v. Kentucky,211 U. S. 45, 211 U. S. 53.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. [Footnote 2/6] 179 U. S. 621. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 283 U. S. 99-100. In Fairchild v. Hughes, 258 U. S. 126, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon,@ 262 U. S. 447, the challenge of the federal Maternity Act was not entertained, although made by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. [Footnote 2/7] Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581; Wall v. Parrot Silver & Copper Co., 244 U. S. 407, 244 U. S. 411-412; St. Louis Malleable Casting Co. v. Prendergast Construction Co., 260 U. S. 469.

7. “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.”

Crowell v. Benson, 285 U. S. 22, 285 U. S. 62. [Footnote 2/8]

One can complain that in these doctrines the Supreme Court is abdicating its duty, but it also shows us that the only remedies remaining to us are massive civil disobedience or constitutional amendment, both of which will require building strong public support. Individuals cannot expect justice if they don’t develop a legion of active supporters.


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