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90 B.U. L. Rev. 109 (2010)


Federal courts have long employed substantive canons of construction in the interpretation of statutes. For example, they apply the rule of lenity, which directs that ambiguous criminal statutes be interpreted in favor of the defendant, and the avoidance canon, which directs that statutes be interpreted in a manner that prevents the court from having to address serious constitutional questions. They also apply so-called “clear statement” rules — for example, absent a clear statement from Congress, a federal court will not interpret a statute to abrogate state sovereign immunity. While some commentators have attempted to rationalize these and other substantive canons as proxies for congressional intent, most recognize substantive canons as advancing policies entirely independent of the intent expressed in either the text or purpose of the particular statute at issue.

The courts’ adoption of substantive canons poses no problem of authority for dynamic statutory interpreters, who understand courts to be the cooperative partners of Congress and treat the creation of norms as part of the courts’ essential role. It poses a significant problem of authority, however, for textualists and purposivists, both of whom understand courts to be the faithful agents of Congress. To the extent that a court applying a substantive canon uses a judicial policy choice rather than the legislative will as its interpretive lodestar, it necessarily acts as something other than a faithful agent in interpreting the statute. Application of substantive canons, therefore, appears directly opposed to the basic premise from which both of these theories proceed.

Those who treat federal courts as faithful agents occasionally note this tension. Nonetheless, they continue to apply substantive canons, and no serious study has been done regarding the question whether substantive canons can be reconciled with those theories of statutory interpretation animated by a strong commitment to legislative supremacy. This paper undertakes such a study, tracing the history of the federal courts’ adoption of substantive canons and examining whether the exercise of this power is consistent with the constitutional structure.



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