Person:

Manning, John

In his perceptive histories of the late-twentieth-century revival of interest in statutory interpretation theory, Philip P. Frickey, always modest, predictably failed to account for his own large contribution to the debate. Assessing this contribution, of course, would present difficulty for anyone, as the work spans so widely. With his frequent coauthor, William Eskridge, Professor Frickey explained statutory interpretation as a form of practical reasoning that transcends any single foundational approach to the subject; thoughtfully explored the utility and dangers of the Supreme Court‘s renewed interest in canons of construction, both substantive and procedural; and developed an intellectually rich casebook that reintroduced Legislation as a core element of the law school curriculum. Writing on his own, Professor Frickey enriched our understanding of the canon of constitutional avoidance as a pragmatic instrument for a Court to use in times of political peril, the transitional problems associated with abrupt changes in the Court‘s approach to statutes, and the importance of judicial craft in statutory cases.

In recent years, the Supreme Court has increasingly supplemented traditional Marbury-style judicial review with constitutionally inspired clear statement rules. These canons of statutory construction have two salient characteristics. First, they impose a clarity tax on Congress by insisting that Congress legislate exceptionally clearly when it wishes to achieve a statutory outcome that threatens to intrude upon some judicially identified constitutional value — such as federalism, nonretroactivity, or the rule of law. Second, as the Court has acknowledged, clear statement rules apply even though the outcomes avoided by such rules would not themselves violate the Constitution. For example, although the Court has held that the Ex Post Facto Clause prohibits retroactivity only in the criminal context, the Court has also culled from that clause (among others) a more general value that it uses to justify a nonretroactivity clear statement rule for civil cases. This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them. In fact, the Constitution represents a “bundle of compromises” that embody not merely abstract ends or values, but also particular means that limit and define the scope and the content of those values. If the Ex Post Facto Clause prohibits retroactivity in the criminal context, it violates the terms of the implementing bargain to extend its animating value to civil contexts. This concern — that clear statement rules impermissibly abstract from concrete constitutional means to general constitutional ends — applies, moreover, even if one believes that most constitutional law is now properly found in judge - made implementing doctrine. Such doctrine itself often defines relatively precise means of enforcing the Constitution, not merely the vague constitutional ends that so often animate clear statement rules.

The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of “separation of powers.” Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a “bundle of compromises” that interpreters must respect if they are to show fidelity to the constitutionmaking process. The historical record reveals that the founding generation had no single baseline against which to measure what “the separation of powers” would have required in the abstract. The U.S. Constitution, moreover, not only separates the powers of the three branches, but also blends them in order to provide mutual checks among the branches. In so doing, it strikes many different balances and expresses its purposes at many different levels of generality. When a provision carefully specifies which branch will exercise a given power and in what manner, interpreters must respect that specific compromise by prohibiting alternative means of exercising that power. Conversely, when the Constitution speaks indeterminately to a particular question, constitutionmakers should not rely on abstract notions of separation of powers to displace Congress’s assigned power to compose the federal government. Rather than invoking any overarching separation of powers theory, interpreters should apply tools of ordinary textual interpretation to construe the particular clauses that make up the constitutional structure.