The New Textualism and Normative Canons
By: William N. Eskridge, Jr.
In Reading Law, Justice Scalia and his coauthor, Professor Bryan Garner, promise that text-based statutory interpretation can be rendered more predictable and constraining if 57 “valid canons” are followed. Admiring the enterprise, this Review maintains that this regime would not solve the problems of unpredictability or judicial policymaking Reading Law identifies. For any difficult case, there will be as many as twelve to fifteen relevant “valid canons” cutting in different directions, leaving considerable room for judicial cherry-picking.
Another problem afflicts their enterprise. Almost all of Scalia and Garner’s “valid canons” are, rather than strictly textualist, either explicitly grounded upon a normative precept or dependent on norms that require an assessment of a statute’s purpose to determine its application. Justice Scalia’s new textualism insists that judges avoid value judgments— but the Scalia and Garner canons make value judgments inevitable. Indeed, canons-based textualism would (if widely followed) be strongly undemocratic. We now have evidence that congressional drafters are not aware of most of Scalia and Garner’s canons—and several of their canons are rules that Congress cannot follow when enacting complicated legislation.
This Review concludes with a defense of the wide variety of canons actually followed by the Supreme Court. No valid approach to statutory interpretation can ignore the precedent-based canons or neglect the legislative history and purpose canons that the Court has long followed. Unfortunately, no canons-based regime will deliver complete predictability, judicial constraint, or fair results, but the multifactored regime followed by the Court is the best that mere judges can devise.
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