Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking

Abstract

In one of the most celebrated law review articles of all time, Karl Llewellyn argued that the traditional canons of statutory construction are not reliable guides to predicting judicial interpretations, because for every canon supporting one interpretation there is a counter-canon cutting against that interpretation. He accomplished his tour de force in large part by focusing upon the "referential" canons-rules referring the Court to an outside or preexisting source to determine statutory meaning'-and upon the "linguistic" canons-general conventions of language, grammar, and syntax. Llewellyn did not explore in any detail the "substantive" canons, the clear statement rules or presumptions of statutory interpretation that reflect substantive values drawn from the common law, federal statutes, or the United States Constitution. Much the same exercise could be performed in connection with the substantive canons-for every canon there is a counter-canon-but with this difference: The substantive canons do reflect some overall tendency or slant in the Court's interpretation of statutes. That is, unlike the linguistic canons or the referential canons, the substantive canons are not policy neutral. They represent value choices by the Court.