Kentucky Law Journal Volume 86 | Issue 3 Article 3 1998 Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies Bradford C. Mank University of Cincinnati Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Judges Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Mank, Bradford C. (1998) "Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies," Kentucky Law Journal: Vol. 86 : Iss. 3 , Article 3. Available at: https://uknowledge.uky.edu/klj/vol86/iss3/3 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. ARTICLES Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies BY BRADFORD C. MANK7 INTRODUCTION S mce President Reagan appointed him to the Supreme Court in 1986, Justice Antonin Scalia has led a revival of textualist statutory interpretation on the Court. Textualist judges often use traditional "canons" of statutory construction when interpreting a statute's text. While canons of construction can be useful in statutory interpretation, textualist judges selectively prefer clear-statement rules that favor states' rights and private economic interests, and usually narrow a statute's meaning. Clear-statement rules generally weaken legislative authority by ignoring a statute's probable purpose unless Congress makes a very clear statement in the text of its intent - for example, that it seeks to preempt state legislation. On the otherhand, textualistjudges are less likelyto invoke canons that promote at least some types of individual rights or, surprisingly, the interpretations of executive agencies. In part, this may be due to political bias on the part of many textualist judges. In addition, textualism as a methodology rejects indications of intent or purpose often found in legislative history Furthermore, textualist judges appear less likely to acknowledge that a statute is ambiguous and that it is appropriate to consider canons or agency interpretations that broaden statutory meaning. *Professor of Law, University of Cincinnati. B.A. 1983, Harvard University; J.D. 1987, Yale Law School. I wish to thank Professor Philip Fnckey for his comments on an earlier draft. All errors or omissions are my responsibility KENTUCKY LAW JOURNAL [VOL. 86 Professor Sunstem has proposed the most sophisticated modem approach to using canons, which he calls "interpretive principles," to address problems of statutory interpretation.' His model, however, offers only limited aid in how to choose among conflicting canons. Furthermore, his principles provide only a modest amount of guidance as to how broadly or narrowly to apply a canon in a given case. It probably is not possible to construct a model that answers all of these questions in every case. This Article demonstrates that textualist judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the expense of others is inappropriate and courts need to strike a new balance in how they use canons. Part I discusses the textualist approach to statutory interpretation and its critics. Part II examines the traditional "canons" of statutory construc- tion and how modem textualist judges have approached their use. Part m shows that textualist judges often use clear-statement rules to narrow a statute's scope, especially to promote states' rights or private economic interests. Part IV suggests that textualist judges are often less vigorous about promoting canons that favor certain kinds of individual constitutional rights. Part V demonstrates that, contrary to the initial expectations of many commentators, textualist judges appear less likely to defer to executive agency interpretations of statutes. Part VI examines Professor Sunstem's interpretive principles, including the difficult questions of how broadly or narrowly to apply a canon and how to balance conflicting canons. This Article concludes that courts should rein i their use of clear- statement rules, but expand their use of canons that favor individual liberties or executive deference. I. STATUTORY INTERPRETATION There are three major or "foundationalist" theories of statutory interpretation: (1) intentionalism; (2) purposivism; and (3) textualism.2 'Seegenerally Cass Sunstem, InterpretingStatutes in theRegulatoryState, 103 HARV L. REv 405, 462-505 (1989) [hereinafter Sunstem, InterpretingStatutes] (proposing interpretive principles for the regulatory state). 2 See William N. Eskridge, Jr. & Philip P Frickey, StatutoryInterpretation As PracticalReasoning, 42 STAN. L. REv 321, 324-25 (1990) [hereinafter Eskridge 1997-98] SELECTIVE CANONS OF STATUTORY CONSTRUCTION 529 While there are differences between the first two approaches, this Article will refer to both intentionalism and purposivism as nontextualist interpretation, and will treat textualism as a method largely separate from the other two theories. Part I will emphasize how textualist interpretation differs from nontextualist approaches. A. Nontextualist Interpretation Intentionalists traditionally examine both a statute's text and legislative history to determine the original intent of the enacting legislature.3 By contrast, purposivism goes beyond the legislature's original intent to estimate the statute's spirit or purpose, because it may be difficult to determine original intent or because a court must apply a statute to circumstances that the enacting legislature did not foresee.4 & Fnckey, Statutory Interpretation](arguing the three major theories of statutory interpretation are "foundationalist" because "each seeks an objective ground ('foundation') that will reliably guide the interpretations of all statutes in all situations."); see also Blake A. Watson, Liberal Constructionof CERCLA Under the Remedial Purpose Canon: Have the Lower Courts Taken a Good Thing Too Far?,20 HARV. ENVTL. L. REV 199,211 n.46 (1996) (citing numerous articles on statutory construction); WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 13-47 (1994) (discussing weaknesses of intentionalism, purposivism and textualism). 3See ESKRIDGE, supra note 2, at 14-25 (describing and criticizing intention- alism); John P Dwyer, The Pathology ofSymbolic Legislation, 17 ECOLOGY L.Q. 233, 298-99 (1990); Eskridge & Frickey, StatutoryInterpretation, supra note 2, at 327; Watson, supra note 2, at 211-12. Articles by leading intentionalists include Daniel A. Farber & Philip P. Frickey, LegislativeIntent andPublicChoice, 74 VA. L. REV 423, 424 (1988) ("In our view, public choice theory is consistent with a flexible, pragmatic approach to statutory construction, in which legislative intent plays an important role."); Richard A. Posner, The JurisprudenceofSkepticism, 86 MICH. L. REV 827 (1988); Kenneth Starr, OfForests and Trees: Structuralism in the Interpretationof Statutes, 56 GEO. WASH. L. REV 703 (1988); Dwyer, supra, at 298 n.267 (listing Farber & Frickey, Posner, and Starr as leading intentionalist scholars). 4See ESKRIDGE, supranote 2, at 25-34 (describing and criticizing purposivism); Watson, supranote 2, at 212, 214-15; see also HENRY M. HART, JR. &ALBERTM. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1378-79 (William N. Eskridge, Jr. & Philip P Frickey eds., 1994) (the classic formulation of a purposivist approach to statutory interpretation). An example ofpurposivism is the conclusion by Massachusetts Supreme Judicial Court Chief Justice Oliver Wendell Holmes, Jr. that a statute requiring "wntten votes" KENTUCKY LAW JOURNAL [VOL. 86 There are significant differences among modem intentionalists and purposivists regarding to what extent they would allow judges to recon- struct congressional intent or purpose when a statute's meaning is ambiguous or it is silent about a particular issue. If there are ambiguities or a "gap" in a statute, many purposivists try to construe the statute in light of the assumption that the legislature was acting for the public good rather than for some narrow interest group.5 A possible problem with a broad purposivist approach is that the interpreter may be too likely to mterject her own biases in ascertaining the intentions or purposes of Congress. More recently, some scholars have proposed going beyond intentionalism or purposivism, especially in cases in which the enacting legislator did not anticipate new or changing circumstances.6 Some proponents of "dynamic" statutory interpretation urge judges to reformu- late statutes, especially those concerned with civil rights, in light of