Dangerous doctrine of constitutional avoidance

(’76 Contributor) “Mere precedent is a dangerous source of authority,” warned Abraham Lincoln in an 1857 speech. Yet the United States Supreme Court has grown too comfortable ruling on precedent or statute and avoiding constitutional questions—and the citizens of the United States are to blame. The precedents behind Supreme Court case Shelby County v. Holder, argued last month, prove this judicial deconstruction.

The question before the Court regards the constitutionality of section five of the 1965 Voting Rights Act (VRA). When the VRA came to the Court four years ago in Northwest Austin Municipal District Number One v. Holder, the Court offered an opinion without considering the constitutional question. They did so by a doctrine known as constitutional avoidance. The Court used this doctrine to uphold the statute in question without reference to the Constitution. Such an act is antithetical to a constitutionally limited government of limited purposes, but even worse is the utter lack of outcry from the American citizenry.

This supposed doctrine of avoidance comes from a precedent set forth by the Marshall Court in 1936. It stated, “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”. In other words, the Constitution is the last authority, not the first. If there exists another way to rule on the case, do not bother with the Constitution.

This doctrine represents the greatest threat to self-governance: the abandonment of the Constitution. The experiment in self-governance set forth in 1789 relied on a constitutionally limited government. The American Constitution was written and established with a purpose, not to mention a strong degree of permanence. This rule of law is what sets American constitutionalism apart from unwritten constitutions—which are based on precedent—because supremacy in governing is found in the Constitution, not the office holder. The Constitution is the ultimate authority. Therefore, it is antithetical to the American constitutional order for the highest Court to rule from precedent or statute, while consciously avoiding the constitutional question.

Constitutional avoidance is particularly egregious in a case dealing with the VRA, such as Shelby. The VRA was enacted in 1965 to ensure every American his or her constitutional right to vote under the Fifteenth Amendment. Section two of the VRA sufficiently does this. However, section five, the statute in question, was only enacted as a temporary measure to counter discrimination in states deemed discriminatory by the U.S. Attorney General. It mandated these states to submit any political districting changes to the Department of Justice for review. This measure was only supposed to last five years; yet, it has been extended four times, and is still in effect.

Although necessary in 1965, the continued renewal of VRA’s section five is a federal intrusion into state and local government. The Northwest case questioned this federal intrusion. However, the Court ruled that the plaintiff was entitled to apply for exemption per section five, and therefore it would be unnecessary for the Court to decide on constitutionality.

Like Northwest, the question in front of the Court for Shelby directly regards Congressional power over voting districts in states under Article Four and the Tenth Amendment. The question too long evaded must now be decided fully. However, there is nothing stopping the Court from ruling once again on the doctrine of avoidance.

With constitutional order being jeopardized by the very office intended to guard it, where is the civic outcry?

This is the most disheartening truth revealed by the doctrine of constitutional avoidance: the American public has lost its civic responsibility—the core tenet of limited government. Self-governance requires that the people maintain a certain reverence for their Constitution, fully understanding its purpose to secure unalienable rights, and jealously defending it from encroachments of federal powers. The people must hold the government accountable to the limited powers they granted in 1789. The limited powers serve a purpose. If the powers are stretched, freedom in America is stretched, and self-government ceases to exist.

Shelby may redeem the poor decision of Northwest, restoring Constitutional order. Or it may also fall subject to the unfounded doctrine of constitutional avoidance. Regardless of the Court’s decision, the people must wake up and recognize the encroachments to their liberty, especially when the highest tribunal utilizes a doctrine that completely avoids the document of ultimate authority—the document of the people, by the people, and for the people.

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