While the Court's decisions opining on how to construe a statute1 are generally excluded from the Constitution Annotated, certain cases involving statutory interpretation may be included insofar as constitutional considerations influence the Court's approach to construing legislative text. Some such cases involve the doctrine of constitutional avoidance—i.e., the longstanding interpretative rule followed by the Supreme Court that counsels that when a particular reading of a statute would raise serious doubts about the statute's constitutionality, a court interpreting the statute must
first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.2 Other cases involve the construction of statutes intended to parallel or supplement specific constitutional rights. However, as a rule, such cases are included only when the interpretation of the statute is inextricably intertwined with the interpretation of a constitutional provision. Two examples may serve to illustrate this.
The first involves the Religious Freedom Restoration Act of 1993 (RFRA),3 which Congress enacted in the wake of the Court's 1990 decision in Employment Division v. Smith repudiating the methodology used in earlier cases to analyze claims asserting a violation of the Free Exercise Clause of the First Amendment.4 These earlier cases had adopted a balancing test—often referred to as the
strict scrutiny test—that weighed whether the challenged action imposed a
substantial burden on the practice of religion and, if so, whether the challenged action served a
compelling government interest.5 However, the Smith Court rejected that approach, allowing generally applicable laws to apply to religious practices without being subject to strict scrutiny.6 In response, Congress enacted RFRA, which prohibits the federal government,7 as a matter of federal statutory law, from substantially burdening a person's exercise of religion unless the government demonstrates that the challenged action serves a compelling government interest and is the least restrictive means of furthering that interest.8 As a result, while the Court's recent RFRA jurisprudence touches on issues of religious liberty, the test imposed by RFRA is distinct from even the pre-Smith Free Exercise case law and, at bottom, does not interpret the Constitution. As a consequence, while the Constitution Annotated references certain RFRA cases, it does not purport to address RFRA cases in detail.
The second example involves the Electronic Communications Privacy Act of 1986 (Wiretap Act).9 This Act authorizes a judge (after receiving an application from the government) to enter an order allowing for the interception of wire, oral, or electronic communications upon finding
probable cause that an individual is committing, has committed, or is about to commit specified offenses.10 The Act does not define what is meant by
probable cause. However, courts construing the probable cause requirement in the Wiretap Act have concluded that it is
co-extensive with the Constitutional requirements embodied in the Fourth Amendment.11 Thus, if the Court were to rule that the Wiretap Act's probable cause requirement was satisfied in a particular case, this ruling would warrant inclusion in the Constitution Annotated if it rests on grounds that inform our understanding of the Fourth Amendment's probable cause requirement.