Textualist Canons: Cabining Rules or Predilective Tools

Abstract:     
Justice Scalia proclaims homage to the, “dead,” Constitution. Justice Brennan honors the, “living,” Constitution. Others believe in, “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method, choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This article uses canons of construction to demonstrate that textualism, particularly plain language or plain meaning textualism, cannot be applied without the use of non-textual personal choices. But, this article does not seek to demonstrate that interpreting the Constitution requires ignoring the text of the Constitution; nor does this article seek to demonstrate that textualist approaches lack relevance or value. Rather, this article seeks to demonstrate that textualism cannot create rules that avoid personal predilections and does not create neutral principles or eliminate predilective interpretation. In order to accomplish this goal, this article reviews a variety of canons of construction and applies them to the Takings Clause.

Number of Pages in PDF File: 36

Accepted Paper Series