The Inconvenience Doctrine

Abstract

Many disdain the use of consequences in legal interpretation. Yet it turns out that interpreters have long used consequences, particularly inconvenient consequences, to decode the law. In the eighteenth century, an argumentum ab inconvenienti-a claim that an alternative reading of the law must be mistaken because of its bad consequences-was a routine technique, perhaps almost as common as an argument grounded on the letter of the law. This article unearths Founding-era evidence of the surprisingly widespread use of consequences to both defeat opposing readings and to decode a law's meaning. Commentators, including Matthew Bacon and Joseph Story, recounted the practice, and litigants, judges, executives, and legislators regularly implemented it. This use of consequences was scarcely controversial, as there seems to have been no one at the Founding who highlighted its difficulties or drawbacks, much less rejected the practice. Instead, the likes of John Marshall, Alexander Hamilton, James Madison, and many others deployed arguments from consequences to determine the meaning of federal and state law. What is an epithet today-result oriented-was something of an apt description of the interpretive practices of the era. As Thomas Jefferson observed, an argument from consequences was one of the "great foundations of the law.

Keywords: consequences, inconvenience, Founding, Statutory interpretation, constitutional interpretation, argumentum ab inconvenienti, courts, executive, congress, Constitution