Stockholders in the Alabama Power Company brought suit to block the sale of electric power by the Tennessee Valley Authority (M) to the Alabama Power Company. As part of their effort the stockholders challenged the constitutionality of the federal government's building the dam generating the electric power and the constitutionality of contracting to dispose of that power. The Court sustained the government on both counts. The excerpt reproduced below, referred to as the Ashwander Rules, is part of Justice Brandeis's concurring opinion pointing out opinion pointing out the importance of judicial restraint.
Mr. Justice Brandeis, concurring.
The Court has frequently called attention to "great gravity and delicacy" of its function in passing upon the validity of an act of Congress; and has restricted exercise of this function by rigid insist that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions....
The Court developed, for its own government the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
2. The court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." *** "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." ***
3. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." ***
4. 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. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question of statutory construction or general law, the Court will decide only the latter. *** Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground. ***
5. The Court will not pass upon the valid statute upon complaint of one who fails to show he is injured by its operation. *** Among the applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. **
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. ***
7. "When the validity of an act of the Congress drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." *** ...