The Rhetorical Canons of Construction: New Textualism's Rhetoric Problem.

AuthorStewart, Charlie D.

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their opponents' arguments, and believe their method provides the best plain meaning.

TABLE OF CONTENTS INTRODUCTION I. HOW WE GOT INTO THIS MESS II. THE RHETORICAL CANONS OF CONSTRUCTION AND NEW TEXTUALISM A. The "Hypocrisy Canon" 1. Reading Law and the Canons of Construction 2. The Rule Against Surplusage 3. Dictionaries 4. "Harm" and the Endangered Species Act Case B. The "Ad Hominem Canon" 1. The Frozen Trucker Case 2. The LSD Case 3. The "Unknowing" Felon Case C. The "Cocktail Party Canon" 1. The Chemical "Warfare" in Pennsylvania Case 2. The Return of the Frozen Trucker 3. "Lawyer, Dog" D. And One More Example for the Road CONCLUSION INTRODUCTION

For as long as legal texts have existed, there has been a battle over how to interpret them. Spanning from early Blackstonian textualism, to intentionalism, to Hart and Sacks purposivism, the debate is spirited and has been well fought for centuries. Over the last few decades, however, the debate has largely quieted with the rise and dominance of the New Textualist school of interpretation. Although an oversimplification--since New Textualism has nuances--the doctrine "in its purest form[] begins and ends with what the text says and fairly implies." (1)

This rise of New Textualism, championed by the late Justice Antonin Scalia and by Justice Neil Gorsuch, (2) is a story of rhetoric as much as one of interpretive technique. Justice Scalia, in particular, led the charge to delegitimize the use of all other methods of statutory interpretation as unprincipled and akin to "looking over the faces of the crowd at a large cocktail party and picking out your friends." (3) Indeed, it seems Justice Scalia made it his life's work to supplant traditional methods of interpretation with New Textualism. (4) By focusing on the text, he claimed, judges would be more constrained, principled, and consistent. (5)

But like any other mode of statutory interpretation, New Textualism has advantages and disadvantages. There is significant and growing evidence that New Textualist methods do not impose a greater constraint on judges than do any other methods of interpretation. (6) Nevertheless, a focus on the text is legitimate when interpreting statutes. This Comment contends that the corresponding rhetoric behind New Textualism is what poses a problem. Prominent voices in the New Textualist movement often shut down the debate by advancing their own specious arguments while calling other methods illegitimate or unprincipled. Although claiming the superiority of one's own method of interpretation is part of any debate, New Textualists frequently go too far. These advocates attempt to completely delegitimize other methods of interpretation, allowing them to game the system in their favor.

Unfortunately, no lionizing force like the late Justice Scalia is advocating for the use of intentionalist or purposivist methods of interpretation. Indeed, it appears even nontextualists have ceded ground to the New Textualists. (7) This is likely because no sane jurist would ever call focusing on the text illegitimate, since the text is where the controversy originally arises. This allows New Textualists to advance their method of interpretation along a united front against a largely faceless and disorganized enemy. (8)

This Comment does not advance the proposition that the text of a statute or document should be disregarded or even discounted in the interpretive process. On the contrary, the text is an excellent place to start and oftentimes an integral component of the interpretive puzzle. This Comment instead focuses on the rhetoric used by the advocates of New Textualism. Further, this Comment does not endorse any particular view of statutory interpretation beyond the proposition that all generally accepted methods should be on the table and that all sources of information should be at least considered unless empirically shown to be unreliable or untrue. (9)

For the time being, the New Textualists appear to have won the interpretive war. The use of the canons of construction (10) over the past twenty-five years has increased significantly, both at the Supreme Court and elsewhere. (11) Some states have even codified the canons. (12) But this Comment argues that the rhetoric surrounding New Textualism made it an unfair fight. Although the New Textualists may have won, their tactics were damaging to the interpretive debate. Their victory may prove to be pyrrhic in the long run.

Part I explores the history of statutory interpretation and the rise of New Textualism. Part II develops a framework for critiquing the rhetoric behind New Textualism, applies it to examples by its leading proponents, and concludes that New Textualists' rhetoric damages the debate around statutory interpretation.


    The history of statutory interpretation is a story of confusion. But the problem of how to interpret ambiguous text is more acute today due to the profusion of laws that accompanied the rise of the administrative state. (13) Instead of uncovering meaning from "natural" sources (14) or relying primarily on the common law, judges today regularly encounter regulations and statutes. The battle of statutory interpretation is no longer a niche area of law. Rather, it touches nearly every area of the legal world and has profound implications for the interpretation and enforcement of laws. (15) How that battle is fought, then, is of paramount importance.

    This Part traces the history of American statutory interpretation. It begins with modern statutory interpretation's prehistory in England and then winds its way through the various epochs of American interpretation. It culminates with an overview of New Textualism's ascendance.

    Sir William Blackstone may have detailed one of the first statutory interpretation regimes in the seminal Commentaries on the Laws of England. (16) In Blackstone's view:

    The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law. (17) In many ways, Blackstone described the "natural law" theory of interpretation that dominated Anglo-American legal thinking for much of the seventeenth, eighteenth, and nineteenth centuries. (18) Natural law proponents believed that the inherent limitations of language made text alone an incomplete source of information. (19) Many great early American thinkers referenced the "reason and spirit" of the law they were interpreting as guiding (and limiting) tools. (20) This method of interpretation vests a heavy amount of discretion in the judge. A natural law approach allows a judge to deviate from the intent of the legislature if it does not produce a "just" result. (21)

    In the latter half of the nineteenth century, the natural law approach gave way to the formalistic "Old Textualism." (22) Old Textualism was an ancestor of New Textualism that took a literal view of statutes and text. Old Textualists followed a positivist approach to law, meaning that judges acted as pseudolegal scientists who "discovered" rather than created law. (23) At their core, Old Textualists focused on the text of a statute as the clearest expression of the intent of the legislature. To determine this legislative intent, Old Textualists believed judges should utilize deductive reasoning to solve any ambiguity. (24) But the rigidity of this early formalism led to resistance by jurists such as Justice Oliver Wendell Holmes in the early twentieth century. (25)

    Justice Holmes believed that the competing policy interests could not be decided neutrally using deductive reasoning or mathematical formulas. (26) Proponents of the Holmesian approach adopted the "faithful agents" model of interpretation, which attempts to effectuate the purpose and intent of the legislature. (27) Instead of mechanically looking at the text, the users of the Holmesian method allowed (and frequently used) legislative history. (28) But as legal realism continued to take root in American jurisprudence, a different approach took root in statutory interpretation. The New Deal Era, World War II, and increased focus on public law led to the rise of the purposivists. (29)

    Perhaps best demonstrated by Professors Henry Hart and Albert Sacks, purposivists desire to interpret a statute in a way that advances the overall social goal of the original legislation. (30) At bottom, Hart and Sacks purposivists desired a system of flexible standards when presented with an ambiguous statute. (31) A judge should reason how a given interpretation will impact (either advance or inhibit) social policy. (32) While this approach dominated the 1950s and 1960s, (33) a backlash at perceived judicial activism (34) led to the creation of a new approach to statutory interpretation. (35)

    New Textualism has risen to dominance over the past few decades as a consequence of the backlash against judicial activism. (36) Led most prominently by Justice Scalia, the approach advanced a formalist-style mindset that focuses on text at the expense of resorting to a broader purpose or looking...

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