Document Type
Article
Publication Date
1997
Publication Information
72 Notre Dame L. Rev. 1495 (1997).
Abstract
Four score and eight years ago, the Supreme Court decided United States v. Delaware & Hudson Co., a little remembered case holding that a federal statute prohibited railroads from shipping coal that they own across state lines. The statute at issue seemed to bar any railroad company from transporting any article that it had produced, but a group of Pennsylvania railroads objected that the statute violated numerous provisions of the Constitution. The Court dodged those constitutional questions by reading the Act narrowly to apply only if the railroad still owned the coal at the time of shipment. Justice Edward White defended this approach by explaining that "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter."
That canon of statutory interpretation has long survived Delaware & Hudson. But instead of Justice White, it is Justice Brandeis who most often gets the credit for the rule as he restated it in his famous concurring opinion in Ashwander v. Tennessee Valley Authority. Frederick Schauer has suggested abandoning the principle altogether. In Ashwander Revisited, Schauer contends that the rule is "triply problematic": first, because it disguises the fact that a court actually makes a constitutional decision by the very act of determining that the rule applies; second, because legislators equate a judicial decision avoiding a constitutional question with a judicial holding of unconstitutionality; and third, because courts invoke the rule without really analyzing the pending constitutional issue.
I agree with much of what Schauer so forcefully argues, but he has told only half of the story. Ashwander is not to blame. In fact, neither the Court nor Justice Brandeis had any occasion in Ashwander to consider whether the Tennessee Valley Authority Act needed to receive a different interpretation to render it constitutional. The true culprit is Delaware & Hudson, where Justice White stated two different rules in his opinion. The second rule that he stated—the rule quoted above, and questioned by Schauer and others—can be termed the "doubts" canon because it directs a court to interpret a statute to avoid any constitutional doubts about the law. The other rule—what I will call the "unconstitutionality" canon—instructs that "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."
Delaware & Hudson was wrong to insist that the doubts canon is the only tool available to a court confronted with an ambiguous statute and a constitutional problem. The unconstitutionality canon presented a viable alternative throughout the nineteenth century.
Recommended Citation
John C. Nagle,
Delaware & Hudson Revisited,
72 Notre Dame L. Rev. 1495 (1997)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/223
Comments
Reprinted with permission of the Notre Dame Law Review.