concurring.
In a government operating under constitutional limitations there are obvious advantages in knowing at once the legal powers of the government. The desire to secure these advantages explains the strong efforts of some of the ablest members of the Philadelphia Convention to associate the judiciary through a Council of Revision in the legislative process.1 The efforts failed, because the disadvantages of such a role by the judiciary were deemed greater than the advantages. And it cannot be too often recalled that the first Chief Justice and his Associates felt constrained to withhold even from the Father of his Country answers to questions regarding which Washington was most anxious to have illumination from the Supreme Court, pertaining as they did to the President’s powers during the Napoleonic conflict. See 3 Johnston, Correspondence and Public Papers of John Jay (1891) 486-89, and 10 Sparks, Writings of Washington (1847) 542-45; and see Thayer, Legal Essays (1908) 53-54.
Accordingly, the fact that it would be convenient to the parties and the public to know promptly whether a statute is valid, has not affected “rigid insistence” on limiting adjudication to actual “cases” and “controversies.” To that end the Court has developed “for its own gov*125ernance in 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.” Mr. Justice Brandéis, concurring, in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345, 346. See also, more recently, Alabama State Federation of Labor v. McAdory, 325 U. S. 450; Alma Motor Co. v. Timken-Detroit Axle Co., 329 U. S. 129; United Public Workers of America v. Mitchell, 330 U. S. 75; Rescue Army v. Municipal Court, 331 U. S. 549.
A case or controversy in the sense of a litigation ripe and right for constitutional adjudication by this Court implies a real contest — an active clash of views, based upon an adequate formulation of issues, so as to bring a challenge to that which Congress has enacted inescapably before the Court. The matter was thus put by an authoritative commentator: “The determination of constitutional questions has been associated with the strictly judicial function and so far as possible has been removed from the contentions of politics. These questions have been decided after full argument in contested cases and it is only with the light afforded by a real contest that opinions on questions of the highest importance can safely be rendered.” Charles Evans Hughes, The Supreme Court of the United States (1928) 32. Time has not lessened the force of the reason for this requirement of abstention as indicated by Chief Justice Marshall: “No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.” Ex parte Randolph, 20 Fed. Cas. No. 11,558 at 254, 2 Brock. 447, 478-79 (C. C. D. Va. 1833).
*126In order that a contest may fairly invite adjudication it is not necessary that the parties should be personally inimical to one another. On the other hand, the fact that the outward form of a litigation has not been contrived by pre-arrangement of the parties does not preclude want of a real contest which is essential to this Court’s exercise of its function, one of “great gravity and delicacy,” in passing upon the validity of an act of Congress. Ashwander v. Tennessee Valley Authority, supra, at 345 and cases cited in footnote 3. This prerequisite may be lacking though there be entire disinterestedness on both sides in their desire to secure at the earliest possible moment an adjudication on constitutional power. It may be lacking precisely because the issues were formulated so broadly as to bring gratuitously before the Court that for which there is no necessity for decision, or because they invite formulation of a rule of constitutional law broader than is required by the precise facts of the situation or the terms of the assailed legislation. See Liverpool, N. Y. and Phila. S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39; see also, Statement of the United States of America as Amicus Curiae, in Burco, Inc. v. Whitworth, 297 U. S. 724; Government’s Brief in Landis v. North American Co., 299 U. S. 248.
We are concerned here not with derogatory implications of collusion, nor have we a case of mootness with its technical meaning of a non-existent controversy. The circumstances bring the present record within those considerations which have led this Court in the past “for its own governance in the cases confessedly within its jurisdiction” to avoid passing on grave constitutional questions because the questions involving the power of Congress come here not so shaped by the record and by the proceedings below as to bring those powers before this Court as leanly and as sharply as judicial judgment upon an exercise of congressional power requires.
*127This case is here under the unique jurisdiction of the Criminal Appeals Act of 1907, as amended, whereby decisions of District Courts raise almost abstract questions of law regarding the invalidity or construction of criminal statutes, in that they do not come here in the setting of normal adjudications on the merits of a controversy. Compare United States v. Petrillo, 332 U. S. 1, with the subsequent adjudication on the merits in United States v. Petrillo, 75 F. Supp. 176. It is most important that such a decision result from due weighing of the considerations which alone can justify the invalidation of an Act of Congress. This implies that there be presented to a District Court the most effective and the least misapprehending legal grounds for supporting what Congress has enacted, while at the same time constitutional adjudication is sedulously resisted by presenting to the District Court alternative constructions of what Congress has written so as to avoid, if fairly possible, invalidation of, the statute. The decision of the District Court in this case comes to us wanting in both respects.
According to the District Court, the Government conceded that § 304 of the Taft-Hartley Act is an abridgment of “rights guaranteed by the First Amendment” but contended that “Congress has power under Article I, Section 4, of the Constitution to abridge First Amendment rights if it considers such a course necessary in maintaining the purity and freedom of elections.” This representation of the Government’s argument below is made in the opinion of the District Court not once, not twice, but thrice.2 At the bar of this Court it was urged on behalf of the Government that the District Court misconceived the arguments of the Government, that what *128the District Court attributed to the Government is not what the Government argued below. But ordinary English words have lost all meaning if the District Judge does-not say unequivocally and three times that that is what the Government has argued. It cannot be whistled away as a gauche manner of saying that inasmuch as utterance may under certain circumstances be restricted, § 304 is not in violation of the First Amendment. That may have been the argument put to the court below, but plainly enough that court did not so understand it. Who is to say how the lower court would have dealt with the problem of constitutionality before it, if the argument had been pitched differently than in the way in which it reached the court, or if the court’s misapprehension had been corrected? No effort was made, by the familiar process of a petition for rehearing or for a clarification of the court’s opinion, to see to it that the lower court manifested an understanding of the Government’s contentions by not attributing an erroneous position to the Government. (See, for instance, petition for rehearing in Morgan v. United States, 304 U. S. 1, 23.)
Again, the defendants did not urge below, as is ordinarily the way of defendants, a construction of the statute *129which would afford them the rights they claim — but would secure those rights not by declaring an Act of Congress unconstitutional but by an appropriate restriction of its scope. On its own motion, this Court now gives a construction to the statute which takes the conduct for which defendants were indicted out of the scope of the statute without bringing the Court into conflict with Congress. Who can be confident that such a construction, which salvages the statute and at the same time safeguards the constitutional rights of the defendants, might not have commended itself to the District Court and eventually brought a different case, if any, before this Court for review?
I cannot escape the conclusion that in a natural eagerness to elicit from this Court a decision at the earliest possible moment, each side was at least unwittingly the ally of the other in bringing before this Court far-reaching questions of constitutionality under circumstances which all the best teachings of this Court admonish us not to entertain.
But since my brethren find that the case calls for adjudication, I join in the Court’s opinion. I do so because of another rule of constitutional adjudication which requires us to give a statute an allowable construction that fairly avoids a constitutional issue. See my dissenting opinion in Shapiro v. United States, ante, p. 36, decided this day.
See 1 Farrand, The Records of the Federal Convention of 1787 (1911) 21, 28, 94, 97 et seq., 105, 107, 109, 110, 111 et seq., 131, 138, 141, 144-45; 2 id. 71, 73 et seq., 294-95, 298 et seq.
1. “The government concedes that rights guaranteed by the First Amendment are abridged by the prohibition against expenditures by labor organizations in connection with elections; but it says that Congress has power under Article I, Section 4, of the Constitution *128to abridge First Amendment rights if it considers such a course necessary in maintaining the purity and freedom of elections.”
“Thus the Court is confronted with the necessity of passing on the validity of Section 304 of the Act, insofar as it relates to expenditures by labor organizations in connection with federal elections.”
2. “It is insisted by the government that Congress could abridge the freedoms guaranteed by the First Amendment (which the government concedes was done here) because of its constitutional control over the manner of holding elections, and its consequent power to prevent corruption therein, and to secure clean elections.”
3. “In support of its argument that congressional control over elections may be exercised in abridgment of rights protected by the First Amendment, the government points to the case of United Public Workers v. Mitchell, 330 U. S. 75.”