The Linguistic and Substantive Canons

66 Pages Posted: 19 Aug 2022 Last revised: 29 Dec 2022

See all articles by Kevin Tobia

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Brian G. Slocum

University of the Pacific - McGeorge School of Law

Date Written: December 27, 2022


: Today’s textualist Supreme Court draws a bright line between essential “linguistic” interpretive canons and suspect “substantive” canons. This Article’s thesis is that the venerable linguistic/substantive dichotomy is false. We present the first empirical study of whether ordinary people (N = 1,520) understand rules in line with some of law’s substantive canons. The study supports that some substantive canons represent valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactivity is usually justified by values like fairness, but it also best reflects ordinary readers’ default understanding of rules’ meanings.

In an age of textualism, this argument has direct practical implications. Interpreters committed to the ordinary reader should reconsider whether rules that have been traditionally described as “substantive canons” might also be linguistic ones. The article’s analysis also puts pressure on textualists to better justify their recent embrace of purely substantive canons, like the new “major questions” canon. Most broadly, the Article makes progress on a longstanding philosophical debate about facts and values in interpretation. Beyond the exclusively linguistic canons and the exclusively substantive canons, there is an important but overlooked category: The linguistic and substantive canons.

Keywords: textualism, interpretation, ordinary meaning, canons, Supreme Court

Suggested Citation

Tobia, Kevin and Slocum, Brian G., The Linguistic and Substantive Canons (December 27, 2022). Available at SSRN: or

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
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Georgetown University - Department of Philosophy

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Washington, DC 20007
United States

Brian G. Slocum

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States
(916) 739-7013 (Phone)

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