Lenity and the Constitution: Could Congress Abrogate the Rule of Lenity?

36 Pages Posted: 24 Aug 2019

See all articles by Julian R. Murphy

Julian R. Murphy

University of Melbourne, School of Law

Date Written: July 1, 2019


The rule that penal statutes are to be interpreted strictly, also known as the rule of lenity, has been said to be as old as the task of statutory interpretation itself. Despite its storied history, however, the rule’s doctrinal foundations have not attracted sufficient attention. This Article conducts the first comprehensive examination of the potential constitutional foundations for the rule. Focus is given to the constitutional doctrines most commonly relied upon by proponents of the rule, namely, the separation of powers and due process. Consideration is also given to more speculative constitutional, and quasi-constitutional, supports including federalism, the rule of law, and historical practice. After examining arguments in favor and against a constitutionally freighted rule, this Article concludes that the rule is constitutionally required, but only in a limited sense. While Congress could considerably whittle down the rule by statutory enactment, separation of powers and due process concerns would require federal courts to interpret any statutory abrogation to leave operable the irreducible core of the rule as a tiebreaker in circumstances where all other tools of statutory interpretation are insufficient to resolve statutory ambiguity.

Keywords: lenity; statutory interpretation; constitutional law

Suggested Citation

Murphy, Julian, Lenity and the Constitution: Could Congress Abrogate the Rule of Lenity? (July 1, 2019). Harvard Journal on Legislation, Vol. 56, No. 2, 2019, Available at SSRN: https://ssrn.com/abstract=3442086

Julian Murphy (Contact Author)

University of Melbourne, School of Law ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria

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