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. A modern Karl Llewellyn might quarrel that, if the substantive canons are malleable (just as the linguistic and referential canons are), how can they be said to have any systematic effect on the Court's results in statutory cases? We agree that the malleability of the canons prevents them from constraining the Court or forcing certain results in statutory interpretation through deductive reasoning from first canonical principles. Yet we also think that the substantive canons are connected in an important way with the results the Court reaches in statutory cases, though not in the cause-effect (canons produce results) way traditionally assumed and effectively criticized by Llewellyn. Rather the opposite occurs: The canons are one means by which the Court expresses the value choices that it is making or strategies it is taking when it interprets statutes (thus, results produce canons). The canons are constructed, and reconstructed, over time. The precise way in which a Court deploys substantive canons of statutory construction reflects an underlying "ideology," or mix of values and strategies that the Court brings to statutory interpretation.
William N. Eskridge, Jr. and Philip P. Frickey,
Quasi-Constitutional Law: Clear Statement Rules as Constitu,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss3/5