Document Type

Article

Publication Title

Tulsa Law Review

Abstract

Textualists seem to like textual canons of statutory construction and with apparently good reason. Canons seem to make apparently sparse text more determinate. Such "intrinsic aids" also apparently do not require courts to inquire into evidence of statutory purpose extrinsic to the statute's text. I will suggest below, however, that the Court's decision in Ali v. Federal Bureau of Prisons illustrates how these textualist advantages of textual canons might more apparent than real. Ali illustrates how the intelligent application of the canons requires inquiry into extra-textual statutory purpose. Moreover, the purposive character of the canons is unrelated to Karl Llewellyn's famous claim that "there are two opposing canons [of statutory construction] on almost every point." One could not eliminate this essentially purposive character, even if one pruned the list of canons to eliminate the more purposive ones, as suggested by Justice Scalia. One also could not make the canons less purposive by refusing to fine-tune them for specific statutes, as suggested by Adrian Vermeule. The problem is not that suggested by Llewellyn-i.e., that textualist and purposivist canons conflict with each other. Instead, the problem is that we do not know what it would mean to apply any canon mechanically without regard to a particular statute's purposes. Even when we know which canon to apply, that canon nevertheless itself can constitute an ambiguous rule that requires interpretation. If one insists that the canon must function as a mechanical algorithm, then one will be forced to create meta-canons to govern the canons' own application in ambiguous cases-and such a meta-canon will itself encounter ambiguities requiring yet further refining rules, and so on, ad infinitum. As I shall suggest below, this prospect of an infinite regress suggests that the mechanistic view of canons is a misstep. Instead, canons are better seen as exemplars of the essentially purpose-driven character of language: They are rules of thumb reminding us that grammatical etiquette is always tightly connected to linguistic mission. Seen as purposive rules, canons are useful tools, but they are not tools from which hard-core textualists should take much comfort. Canons create as much textual ambiguity as they resolve; one can reasonably view canons as serving precisely the function of surfacing ambiguities in text that courts might otherwise overlook, thereby creating opportunities for the court to consider the purpose of the enactment lying behind the text.

First Page

501

Volume

44

Publication Date

2009

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