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An Essay Concerning Some Problems with the Constitutional-Doubt Canon


Benjamin M. Flowers


February 21, 2018

The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful authority—a notion that motivates our constitutional structure, and in particular the series of checks and balances that the Constitution creates. This tension between the constitutional-doubt canon and the Constitution’s structure would be acceptable if the canon accurately reflected the manner in which the public understands legislative enactments. But it doesn’t. Thus, the only possible justification for the constitutional-doubt canon is stare decisis.


Benjamin M. Flowers, An Essay Concerning Some Problems with the Constitutional-Doubt Canon, 74 Wash. & Lee L. Rev. Online 248 (2018).