The Doctrine of the Last Antecedent, the Example in Barnhart, Why Both are Weak, and How Textualism Postures

Abstract

This article criticizes the doctrine (or canon) of the last antecedent, the example in Barnhart v. Thomas (540 U.S. 20) that has spurred its increasing use, and the claim that Justice Scalia’s textualism is objective and politically neutral. To counter this claim, the article summarizes six empirical studies and cites eleven other sources. It also lists a dozen arguments to support the validity and value of legislative history as an aid to interpretation.

Keywords: textualism, judicial interpretation, canons of construction, doctrine of the last antecedent, legislative history