Academic journal article Michigan Law Review

The Rhetorical Canons of Construction: New Textualism's Rhetoric Problem

Academic journal article Michigan Law Review

The Rhetorical Canons of Construction: New Textualism's Rhetoric Problem

Article excerpt


For as long as legal texts have existed, there has been a battle over how to interpret them. Spanning from early Blackstonian textualism, to intentionalism, to Hart and Sacks purposivism, the debate is spirited and has been well fought for centuries. Over the last few decades, however, the debate has largely quieted with the rise and dominance of the New Textualist school of interpretation. Although an oversimplification-since New Textualism has nuances-the doctrine "in its purest form[ ] begins and ends with what the text says and fairly implies."1

This rise of New Textualism, championed by the late Justice Antonin Scalia and by Justice Neil Gorsuch,2 is a story of rhetoric as much as one of interpretive technique. Justice Scalia, in particular, led the charge to delegitimize the use of all other methods of statutory interpretation as unprincipled and akin to "looking over the faces of the crowd at a large cocktail party and picking out your friends."3 Indeed, it seems Justice Scalia made it his life's work to supplant traditional methods of interpretation with New Textualism.4 By focusing on the text, he claimed, judges would be more constrained, principled, and consistent.5

But like any other mode of statutory interpretation, New Textualism has advantages and disadvantages. There is significant and growing evidence that New Textualist methods do not impose a greater constraint on judges than do any other methods of interpretation.6 Nevertheless, a focus on the text is legitimate when interpreting statutes. This Comment contends that the corresponding rhetoric behind New Textualism is what poses a problem. Prominent voices in the New Textualist movement often shut down the debate by advancing their own specious arguments while calling other methods illegitimate or unprincipled. Although claiming the superiority of one's own method of interpretation is part of any debate, New Textualists frequently go too far. These advocates attempt to completely delegitimize other methods of interpretation, allowing them to game the system in their favor.

Unfortunately, no lionizing force like the late Justice Scalia is advocating for the use of intentionalist or purposivist methods of interpretation. Indeed, it appears even nontextualists have ceded ground to the New Textualists.7 This is likely because no sane jurist would ever call focusing on the text illegitimate, since the text is where the controversy originally arises. This allows New Textualists to advance their method of interpretation along a united front against a largely faceless and disorganized enemy.8

This Comment does not advance the proposition that the text of a statute or document should be disregarded or even discounted in the interpretive process. On the contrary, the text is an excellent place to start and oftentimes an integral component of the interpretive puzzle. This Comment instead focuses on the rhetoric used by the advocates of New Textualism. Further, this Comment does not endorse any particular view of statutory interpretation beyond the proposition that all generally accepted methods should be on the table and that all sources of information should be at least considered unless empirically shown to be unreliable or untrue.9

For the time being, the New Textualists appear to have won the interpretive war. The use of the canons of construction10 over the past twenty-five years has increased significantly, both at the Supreme Court and elsewhere.11 Some states have even codified the canons.12 But this Comment argues that the rhetoric surrounding New Textualism made it an unfair fight. Although the New Textualists may have won, their tactics were damaging to the interpretive debate. Their victory may prove to be pyrrhic in the long run.

Part I explores the history of statutory interpretation and the rise of New Textualism. Part II develops a framework for critiquing the rhetoric behind New Textualism, applies it to examples by its leading proponents, and concludes that New Textualists' rhetoric damages the debate around statutory interpretation. …

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