The Incompatibility of Substantive Canons and Textualism

73 Pages Posted: 19 Jan 2023 Last revised: 12 Dec 2023

Date Written: January 19, 2023

Abstract

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious - and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve.

With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be.

Keywords: Substantive canons, textualism, statutory interpretation

Suggested Citation

Eidelson, Benjamin and Stephenson, Matthew Caleb, The Incompatibility of Substantive Canons and Textualism (January 19, 2023). 137 Harv. L. Rev. 515 (2023), Harvard Public Law Working Paper No. 23-06, Available at SSRN: https://ssrn.com/abstract=4330403 or http://dx.doi.org/10.2139/ssrn.4330403

Benjamin Eidelson (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

HOME PAGE: http://scholar.harvard.edu/beidelson

Matthew Caleb Stephenson

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-9863 (Phone)

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