Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. (1) Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, (2) which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. (3) The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. (4) The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now famous for his rigid adherence to formalism. (5) Justice Stevens rejects the formalist method, grounded as it is solely on the abstract meaning of statutory text, and employs instead the contextual, nonformalist method that seeks to interpret statutes by reference to the legislature's intent and purpose. (6) This debate about methodology is important because different interpretive results may well follow from the interpretive method that is employed. (7)
This Article provides a context for assessing the Court's debate about interpretive methodology through an examination of the past and contemporary place of the communis opinio canon in cases of statutory construction. The Article begins by describing Brogan v. United States, (8) a recent case in which Justices Scalia and Stevens debated the modern relevance of the ancient canon of communis opinio. (9) The Court, in an opinion by Justice Scalia, employed the formalist method to reject a narrow interpretation of a broad criminal prohibition on making false statements to federal officials. (10) Justice Stevens, invoking the communis opinio canon in his nonformalist dissent, relied on a long-standing practice that had developed under the statute, and was accepted by the Department of Justice and several courts, to impose substantial limits on the scope of the criminal prohibition. (11) Justice Scalia derided this resort to the communis opinio canon, contending first, that the canon simply did not apply to the interpretation of a statutory text and second, that the canon resulted in an error being adopted as law because of its wide acceptance. (12)
The second part of the Article considers the validity of Justice Scalia's claim that the communis opinio canon has no proper application to the interpretation of statutes. The Article addresses the source of the communis opinio canon and a closely related canon in Coke's Institutes, hypothesizes reasons for the articulation of the canons by Chancellor Coke, and considers the easy acceptance and application of the hybridized canon in early American cases. (13) This section will show how the canon, whose value was ridiculed by Justice Scalia, was commonly accepted by American courts. The Article then considers the conventional requirements for the application of the canon and examines how effectively those requirements have constrained the use of the canon in statutory interpretation. (14) Finally, this part of the Article considers the varying interpretive effects that courts have given to the canon when it is applicable. (15) One of these interpretive effects, employed in two notable cases, one decided by Chief Justice Marshall (16) and the other (17) decided five years before the Court famously "endorsed countertextual interpretive techniques" (18) in Holy Trinity Church v. United States, (19) has been to reject the clear, determinate meaning of the statutory text and to accept instead the common practice that developed under the statute. (20) In short, far from being inapplicable to the interpretation of statutes, the communis opinio canon has been employed by the Supreme Court to reach countertextual interpretive results.
Given that the communis opinio canon has been used by the Supreme Court to present interpretations that conflict with the apparent meaning of the text, the last part of this Article considers whether a court acts properly when it accords legal significance, including a determinative effect, to communis opinio. (21) Particular attention is given to Justice Scalia's claim that communis opinio yields interpretations that have the effect of changing the law by codifying common error. This analysis initially proceeds by considering the three rationales traditionally employed for employing the communis opinio canon--strong evidence of the meaning of text, (22) evidence of the intent of the drafters of the text, (23) and public reliance. (24) When it fails to account for communis opinio, a formalist court loses a valuable opportunity to place a reliable check on the autonomy of that interpretive method and undermines important reliance interests.
The Article then presents a fourth rationale for the strong use of the canon: its use reflects a proper role of the court in the process of lawmaking. The Article first assumes the significance of the rule-of-law values that formalism purports to serve. Because common practice constitutes law in important ways, the communis opinio canon should provide an especially important context for interpreting statutes under the formalist or antiformalist methods. Ignoring communis opinio may yield interpretations that are inconsistent with the rule-of-law values that formalism tries to promote. (25) The presumptive meaning that this canon should give to statutory text has strong indicia of correctness and ought to be rejected only when other textual and contextual meanings are uniform and contrary.
One historically important context in which the formalist Justices have recognized the status of practice as law was the recent presidential election cases. In deciding whether the Florida Supreme Court had changed state election law when it interpreted the election statute, the three concurring Justices in Bush v. Gore, (26) including Justices Scalia and Thomas, relied on two standards against which to gauge whether the decision had effected a change in law: variance from the text (27) and, importantly, variance from prior practice. (28) To be sure, the concurring opinion makes no reference to the canon of communis opinio in relying on prior practice to discern a change in law. The opinion does, however, properly accept the significance of practice in fixing the content of law. (29) This section concludes that Justice Scalia's formalist aversion to communis opinio strongly undercuts the formalist method's traditional claims to legitimacy and may encourage judicial interpretations that have the effect of changing law.
The Article's final section discusses how the formalist aversion to employing the communis opinio canon yields erroneous decisions and undercuts the empirical value of the formalist method by increasing the costs of the legal system. (30)
A MODERN DEBATE ABOUT AN ANCIENT CANON: BROGAN V. UNITED STATES AND COMMUNIS OPINIO
In Brogan v. United States, (31) the Supreme Court decided whether a "mere denial of wrongdoing" (32) was a violation of the federal prohibition against making false statements to federal officials. (33) That statutory prohibition was written in the following broad terms:
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. (34) Notwithstanding the breadth of this statutory text, a practice had developed over many years that an "exculpatory no"--that is a simple denial of wrongdoing--did not come within the criminal prohibition. This practice consisted of a long line of decisions by the courts of appeals accepting an "exculpatory no" defense to claimed violations of the criminal prohibition, (35) a Department of Justice policy against prosecutions for statements that are mere denials of wrongdoing, (36) and a confession of error by the Solicitor General before the Supreme Court that was approved by the Court. (37)
Writing for six members of the Court, (38) Justice Scalia employed his usual formalist method for interpreting a statute (39) and determined that "the plain language of [section] 1001 admits of no exception for an `exculpatory no.'" (40) For Justice Scalia, the breadth of the statute's text foreclosed any possibility of a narrow judicial construction: "[I]t is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy even assuming that it is possible to identify that evil from something other than the text of the statute itself." (41)
Justice Stevens dissented. (42) Employing his usual eclectic, non-formalist approach to statutory interpretation, (43) Justice Stevens concluded that Congress intended to proscribe a narrower range of conduct than the statutory text indicated, and that the "exculpatory no" exception should be recognized by the Court. (44) In defending this conclusion, Justice Stevens relied on the ancient canon of communis opinio to establish that, because a narrow understanding of the scope of the statutory prohibition was well and long accepted by the legal community, the statute should be interpreted narrowly by the Court. (45) Justice Stevens contended that "the Court should show greater respect for the virtually uniform understanding of the bench and the bar that persisted for decades with ... the approval of this Court as well as the Department of Justice." (46) Justice Stevens indicated that such respect was proper and warranted because "as Sir Edward Coke phrased it, `it is the common...