Neither fish nor fowl? Canons of statutory interpretation seem to exist in a liminal space. They react to statutory language, for example, without obviously fitting “inside” any singled-out statute particular authorization. Maybe canons are expressions of judicial statecraft—ad hoc implementations of adjudicative norms, rather than primary legal instruments. We still remember Brandeis and Frankfurter and Bickel, don’t we? Even so, we ought to want to know where canons come from.
Anyone aware of the well-established textualist turn in statutory and constitutional interpretation these days likely recognizes that textualisms and canons don’t always mix well. The controversy lies mainly with substantive canons. These are treated as somehow associated with the Constitution, not simply investigatory abbreviations or cues for the reader of the statute.
Well-put analyses are readily at hand. Professors Eidelson and Stephenson call attention to two writers in particular. John Manning wrote extensively on these questions, beginning around the turn of the century and running through fifteen prolific years, until he enlisted or was drafted into administrative service. His studies were and are clear, thoughtful, and well-elaborated: skeptical of quick conclusions, attentive to the virtues of close readings of both statutes and constitutional passages, and ready to work through possible tensions and reconciliations. Manning’s writing is very easy to applaud. Eidelson and Stephenson also focus heavily on a lengthy, well-done article published by then-Professor Amy Coney Barrett in 2010.
Acting Provost Manning and Justice Barrett, as they now are, readily acknowledge the tensions that textualism and substantive canon-mongering generate if pushed close together. That’s why Manning often endorses detailed scrutiny of the canons, an approach that (he expects) should result in greater awareness of the intricacy of this relationship. Statutory and constitutional words, for Manning, both require an approach that stresses tense and detailed formulations and therefore may not yield easy interpretive allegiances. He rejects abstract constitutional proclamations and the hidden work they entail.
Way back in 2010, not-yet-Justice Barrett was not especially concerned by frequent judicial invocations of “equity of the statute” and the like, however plainly such invocations depart from modern textualism. (Manning, by contrast, had already voiced criticisms.) Barrett also thought that attention to constitutional intimations, suppositions, or abstractions did not disserve statutory “fidelity.” “Faithful allegiance” was an overall judicial duty.
Eidelson and Stephenson see things differently. They seem to want to confront statutory readers like Barrett with the brute fact of the conceptual incongruity between textualism as it is understood today and the substantive canons. Merely “acknowledging” that incongruity is not enough. They want to confront textualists with a hard, even ruthless choice between, as it were, full-fledged cultural revolution or nothing. Textualism is either pure and substantive-canon-free, or it is workable, stumbling along with the existing substantive canons in tow—but not true textualism.
This is all very bracing.
Canons of construction are—at least sometimes—immediately constitutional in origin, and therefore straightforwardly preemptive. We know that Article IV of the 1787 United States Constitution prescribed several simplifications, easily read as already-in-place constitutional canons of construction. Simple tests address the status across states of legally “mobile” legal documents. The same is true of judgments, arrest warrants served across states (extradition), and claims to standard legal privileges and immunities open to cross-state travelers. Enslavements established in one state hold true in all without close scrutiny. In Prigg v. Pennsylvania, Joseph Story emphatically decreed that all states, whatever their own policies, were constitutionally obliged without question to assist the return of fugitive slaves. This mandate, Story declared, was an existentially fundamental constitutional premise.
Did the Fourteenth Amendment turn Prigg around? Was there now, as of 1868, a constitutional premise replacing the commitment to slavery’s success? Did it reside, perhaps, in the first sentence of Section One and its promise of equal citizenship? Did the Fourteenth Amendment create other canon-like rules for constitutional readers—and make clear that they could be found elsewhere in the Bill of Rights besides? “One person, one vote,” for example, followed from Section One’s promise, as Earl Warren intimated in Reynolds v. Sims. We might take a similar view of the “equal citizenship” construction that was treated as given in Ex parte Endo. Maybe Miranda warnings, at least in Warren’s initial account, were one step removed, but still sparked by the Constitution. And how about the tort reform included in Sullivan? We might recall Henry Monaghan’s virtuosity in naming and elaborating “constitutional common law.” Reworking his insight slightly, we might see constitutional common law not as a general phenomenon itself, but as the artifact of particular constitutional commitments and circumstances. (Sullivan may be one such artifact.) On this view, we can add to “the equity of the statute” the concept of “equities of the Constitution.”
Professors Eidelson and Stephenson seem to suppose that in the cases that interest them, a particular statute stands up front, serving as the primary focus for the legal reader. Other legal instruments are more or less proximate hazards, unfortunate or unwelcome intruders who simply complicate the job of interpreting the primary statutory text. Why make this assumption? Manning, by contrast, treats separation of powers and federalism preoccupations as relevant raw materials too, even if their presence introduces inescapable complexity to the statutory reader’s task. Even before she took the judicial bench, Barrett wrote as though she were already thinking from within a more adjudicative perspective, or at least one version of such a perspective—one that is judiciously tolerant of the inevitability of ad hoc accommodations in judicial opinions. Perhaps the difference between Eidelson and Stephenson and writers like Manning and Barrett is one of forum-setting. Maybe academic writing, at least, is not the right place for such catholicity. Jurisprudential nods and winks are all very well for judges. But academic apologists for and theorists of textualism have no such excuse. They must confront the tension between textualism and the substantive canons head-on.
