Are There Any Substantive Canons of Interpretation?

<p>Since the late 1980s, scholars have distinguished between two kinds of canons of statutory interpretation: linguistic canons, which judges invoke on the ground that they track the legislature’s intended meaning, and substantive canons, which judges invoke on the ground that they advance policy objectives. There has been much discussion about whether there should be any substantive canons, with scholars debating whether such canons are compatible with textualism and whether they are prone to manipulation by judges to reach desired outcomes under a guise of neutrality. But participants in these debates rarely question whether there are any substantive canons at all.</p> <p>Yet there are at least three powerful reasons to doubt the existence of substantive canons. First, judges purport to be seeking the legislature’s intended meaning when engaged in statutory interpretation, including in the very opinions in which they apply allegedly substantive canons. Second, judges purport to be following the law and explicitly acknowledge that the legislature’s intended meaning is the law, including in the very opinions in which they apply allegedly substantive canons. Third, judges overwhelmingly describe allegedly substantive canons in linguistic terms, as based on presumptions about what the legislature likely meant.</p> <p>This Article argues that the introduction of the substantive-linguistic distinction into the scholarly discourse was a mistake. There are no substantive canons of statutory interpretation. If true, this thesis has implications for the classification of disputed-status canons such as the major-questions doctrine, the scope and strength of allegedly substantive canons more generally, the role of critical theory in recalibrating canons such as constitutional avoidance that are based on presumptions of legislative beneficence, and the role of law-and-economics analysis in understanding canons for the interpretation of private-law instruments such as wills and contracts.</p>