Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon

Abstract

In this article, we consider the impact of positive political theory on legislative interpretation and, in particular, the debate over interpretive canons. Our vehicle for this consideration is the appropriations canon. By virtue of this canon, courts construe narrowly legislative changes to statutes made through the appropriations process. We consider the underlying logic and rationale of this canon - essentially, that the appropriations process is unrepresentative and insufficiently deliberative - and use this analysis to investigate, more broadly, the processes of canonical construction in the modern statutory interpretation jurisprudence. Canonical construction, we argue, must be attentive to the equilibrium effects of judicial approaches and, moreover, it must be based upon a normatively compelling theory of lawmaking and the legislative process. The appropriations canon fails both of these tests; and, in its structure, it reveals some of the weaknesses of the contemporary reliance on canons to illuminate statutory meaning.

Keywords: positive politcal theory, legislative interpretation, legislative canons, appropriations process, statutory interpretation

JEL Classification: K00