The Linguistic and Substantive Canons
Harvard Law Review Forum, Vol. 137, pp. 70-108 (2023)
39 Pages Posted: 19 Aug 2022 Last revised: 26 Dec 2023
Date Written: December 22, 2023
Abstract
Textualists' use of "substantive canons" of interpretation has been challenged by recent scholars, including textualists themselves: Textualists should employ "linguistic canons" that reflect ordinary meaning but not "substantive canons" whose justification comes from normative values. Yet, textualist practice still employs traditional substantive canons, as well as some new ones, like the major questions doctrine.
This essay proposes that textualists need not abandon all substantive canons. We question the traditional dichotomy between linguistic and substantive canons. Some interpretive rules could have a basis in both values and language. Those rules comprise the set of the “linguistic and substantive” canons. This reconceptualization offers a way to reconcile some substantive canons with textualism — namely by recognizing that those canons are also linguistic.
Keywords: textualism, interpretation, ordinary meaning, canons, Supreme Court
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