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

See all articles by Brian G. Slocum

Brian G. Slocum

Florida State University, College of Law

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

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

Suggested Citation

Slocum, Brian G. and Tobia, Kevin, The Linguistic and Substantive Canons (December 22, 2023). Harvard Law Review Forum, Vol. 137, pp. 70-108 (2023), Available at SSRN: https://ssrn.com/abstract=4186956 or http://dx.doi.org/10.2139/ssrn.4186956

Brian G. Slocum

Florida State University, College of Law ( email )

425 West Jefferson Street
Tallahassee, FL 32301
United States
(850) 644-7294 (Phone)

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/kevin-tobia/

Georgetown University - Department of Philosophy

37th and O Streets, N.W.
Washington, DC 20007
United States

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