Legal Definitions - Brandeis rules

The Brandeis rules, also known as the Ashwander rules, are a set of principles that guide courts, particularly the U.S. Supreme Court, in exercising judicial restraint when considering constitutional questions. These rules encourage courts to avoid making constitutional rulings unless absolutely necessary and to decide cases on non-constitutional grounds whenever possible. They were famously articulated by Justice Louis Brandeis in his concurring opinion in the 1936 case Ashwander v. Tennessee Valley Authority.

The core idea behind these rules is to respect the legislative branch, conserve judicial resources, and ensure that constitutional issues are only addressed when unavoidable and with a full understanding of their practical implications.

Key principles include:

• Courts should not pass upon a constitutional question unless its resolution is absolutely necessary to the decision of the case.
• Courts should not anticipate a question of constitutional law in advance of the necessity of deciding it.
• Courts should not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
• If a case can be disposed of on non-constitutional grounds, that path should be taken.
• If a statute can be interpreted in two ways, one that raises constitutional doubts and one that avoids them, the court should choose the interpretation that upholds the statute's constitutionality.

Here are some examples illustrating the application of the Brandeis rules:

• Example 1 (Statutory Interpretation to Avoid Constitutional Question):

  Imagine a state law that prohibits "any public display of political symbols" near polling places. A group wants to wear t-shirts with a political slogan while voting and challenges the law, arguing it violates their First Amendment right to free speech. Instead of immediately ruling on the constitutionality of the entire law, a court applying the Brandeis rules might first interpret "public display" very narrowly, perhaps to mean only large banners or signs, but not clothing worn by individuals. By interpreting the law in a way that allows the t-shirts, the court avoids having to decide whether the broader ban on "any public display" is unconstitutional, thus adhering to the principle of avoiding constitutional questions if a case can be resolved on other grounds (in this case, statutory interpretation).

• Example 2 (Necessity and Standing):

  A new federal regulation is passed, and a citizen immediately files a lawsuit claiming it infringes on a constitutional right, even though the regulation hasn't yet been enforced against them, and there are administrative procedures available to challenge it. A court following the Brandeis rules would likely dismiss the lawsuit. It might rule that the citizen lacks "standing" because they haven't suffered actual harm yet, or that the case is not "ripe" for review because the administrative process hasn't been exhausted. By doing so, the court avoids prematurely deciding a constitutional question that might never become necessary if the regulation is modified or if the citizen's issue is resolved through other means.

• Example 3 (Narrow Ruling):

  A city ordinance requires all street performers to obtain a permit, and a street musician challenges it, arguing it violates their free speech rights. The court finds that the permit fee is excessively high and disproportionately burdens low-income performers, effectively suppressing their speech. Instead of issuing a sweeping ruling that all permit requirements for street performers are unconstitutional, a court applying the Brandeis rules might issue a narrower ruling. It might declare only the excessive fee portion of the ordinance unconstitutional, or rule that the city must implement a reasonable, content-neutral fee structure. This approach avoids formulating a rule of constitutional law broader than is required by the specific facts of the case, leaving other aspects of the permit system intact if they are not constitutionally problematic.