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John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399 (2010).

Abstract: 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 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.