Substantive canons and faithful agency

Boston University Law Review

Volumn 90, Issue 1, 2010, Pages 109-182

  Coney Barrett, A M Y ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

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EID: 77950429124     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (603)

1. See infra notes 74-75 and accompanying text.
2. Compare generally William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776 - 1806, 101 COLUM. L. REV. 990 (2001) (amassing historical evidence designed to convince even originalists that "the judicial Power" includes the power of equitable interpretation),
3. with John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001) (interpreting history to support the argument that federal courts are Congress's faithful agents, not its cooperative partners).
4. See, e.g.. United States v. Amer. Tracking Ass'n, 310 U.S. 534, 543 (1940) (asserting that when applying a statute's plain meaning would yield a result "'plainly at variance with the policy of the legislation as a whole' this Court has followed that purpose, rather than the literal words"
5. (quoting Ozawa v. United States, 260 U.S. 178, 194 (1922)));
6. Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892) ("It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.");
7. Richard A. Posner, Statutory Interpretation in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817 (1983) ("The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.").
8. A bill must compete for space and priority on the congressional agenda. It must navigate numerous "vetogates," including committee votes, the threat of Senate filibuster, and the threat of presidential veto. Passage through each of these points requires both strategic choice and compromise. For example, a bill's sponsors - and perhaps even a majority of either or both the House and the Senate - may want the text expressly to include or exclude certain applications, but deciding whether to propose amendments is a strategic choice. See John F. Manning, The Absurdity Doctrine, 116 HARv. L. REV. 2387, 2409 (2003);
9. see also Frank H. Easterbrook, The State of Madison's Vision of the State: A Public Choice Perspective, 107 HARv. L. REV. 1328, 1346-47 (1994) (asserting that statutes "reflect the outcome of a bargaining process among factions (and their representatives)").
10. Manning, supra note 5, at 2411.
11. The textualist unwillingness to set aside concrete text in the service of abstract intention has several logical consequences. One of the most notable is the rejection of legislative history. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990). Legislative history is most often consulted as persuasive evidence of the legislature's subjective intent, and because textualists discount such intent, they have little use for legislative history.
12. See ANTONIN SCALIA, A MATTER OF INTERPRETATION 29 ( 1997);
13. cf. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673 (1997) (arguing that the treatment of legislative history as authoritative violates the constitutional prohibition on self-delegation). Another consequence is textualism's rejection of the absurdity doctrine, which rests on the premise that Congress could not have intended a statute to apply in ways that contradict widely held social values. As Manning has argued, application of the absurdity doctrine is inconsistent with the intent-skepticism that lies at the foundation of modem textualism.
14. See Manning, supra note 5, at 2417-2419
15. See Manning, supra note 2, at 10-26 (describing evolution of statutory interpretation debate from one about the role of congressional intent to one about the force of the norm of faithful agency).
16. Eskridge, supra note 2, at 992 ("In my view. Article III judges interpreting statutes are both agents carrying out directives laid down by the legislature and partners in the enterprise of law elaboration, for they (like the legislature) are ultimately agents of 'We the People.'").
17. For a sampling of commentators urging this position, see generally, for example, GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982);
18. RONALD DWORKIN, LAW'S EMPIRE (1986);
19. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994);
20. William D. Popkin, The Collaborative Model of Statutory Interpretation, 61 S. CAL. L. REV. 541 (1988).
21. See supra note 2 and accompanying text.
22. Manning, supra note 2, at 26 & n.110.
23. Eskridge, supra note 2, at 995-96 (describing how English judges extended, narrowed, and voided statutes in the exercise of this equitable power);
24. id. at 999-1009;
25. id. at 1009-40, 1058-84 (setting forth detailed evidence of early American practice in both state and federal courts);
26. see also id. at 996 n.22 (explaining that "[t]he English doctrine of lequity de lestatut" did not originate in English law, but traces its lineage back even further to Roman law). Eskridge also draws support for his thesis from the ratification debates of 1788 and 1789. Id. at 1040-58.
27. Id. at 992, 997;
28. see also William N. Eskridge, Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1522-32 (1998);
29. Popkin, supra note 10, at 585;
30. Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. REV. 1023, 1095 (1998) ("The 'judicial power,' as it would have been understood by those framing the Constitution, included, as part of its power to construe statutes, some power to maintain coherence in the law, which is, inescapably, a law making function...").
31. Manning, supra note 2, at 29 ("[T]he equity of the statute represented a deeply entrenched doctrine of judicial power in England, making it a possible source for understanding the meaning of 'the judicial Power of the United States.'");
32. id. at 29-36.
33. Id. at 57;
34. id. at 79 ("[F]ederal courts sometimes applied the equity of the statute as late as the mid-nineteenth century, but... the Supreme Court had taken a decisive tum toward the faithful agent theory as early as the Marshall Court.");
35. see also John Choon Yoo, Note, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 YALE LJ. 1607, 1615 (1992) (arguing, similarly, that the early judiciary was divided on the question of equitable interpretation, and that the Marshall Court resolved the issue by rejecting the practice as inconsistent with the "new constitutional order").
36. Manning, supra note 2, at 58-78.
37. Id. at 57.
38. Id.
39. Consider that when the judiciary makes case-by-case exceptions, Congress saves the political cost of making exceptions in the text of the statute. In Public Citizen v. U.S. Department of Justice, 491 U.S. 440 (1989), for example, the Court held that it would be absurd to interpret the Federal Advisory Committee Act as applying to the American Bar Association ("ABA"). In so doing, the Court saved Congress the cost of expressly excluding a politically powerful group like the ABA from the statute. This undermines legislative accountability: "Congress... reap[s] the benefits of passing tough, general laws without fully internalizing the consequences of framing laws in unqualified terms."
40. Manning, supra note 5, at 2437.
41. Manning, supra note 2, at 57.
42. Id. at 57-58;
43. see also Manning, supra note 5, at 2438 (arguing that disrupting the legislative bargain undermines the power of political minorities to "demand compromise as the price of assent").
44. This is a description of the textualist position on faithful agency rather than the full debate. For the dynamist response to these arguments, see Eskridge, supra note 2, at 1088-1105
45. William N. Eskridge, Jr., Spinning Legislative Supremacy, 78 GEO. LJ. 319, 321 n.9 (1989) ("Conceptualizing the court's role in statutory interpretation as a protector of public values goes beyond legal process theory to- the extent it encourages courts to engage in creating norms.").
46. The question for a dynamic statutory interpreter is not whether federal courts have the authority to adopt substantive canons, but rather which canons they should adopt. See, e.g., William N. Eskridge, Jr. & Philip Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmafcing, 45 VAND. L. REV. 593, 596-98 (1992) (critiquing Court's choice of certain substantive canons);
47. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARv. L. REV. 405, 505, 507-508 (proposing canons that would promote deliberative democratic government).
48. The case for substantive canons is also difficult for purposivists, because they too reject the proposition that a judge can deviate from Congress's intent based on her own assessment of desirable public policy. I focus here on textualists for two reasons. First, they have offered the fullest defense of the norm of faithful agency, a defense that I find persuasive. Second, the tension between faithful agency and substantive canons is more evident for textualists, because the application of substantive canons is the only circumstance in which they are willing to depart from lhe most natural meaning of a statute. Recall that purposivists are willing to depart from the plain meaning of a statute when they believe that Congress would have wanted them to do so.
49. See supra note 4 and accompanying text.
50. Frank H. Easterbrook, The Supreme Court 1983 Term: Foreword: The Court and the Economic System, 98 HARv. L. REV. 4, 60 (1984) (arguing that democratic principles, as well as the constitutional separation of powers, mandate that judges function as the "honest agents of the political branches");
51. see also SCALIA, supra note 7 at 9-10, 22-23 (arguing that democratic principles compel judges to be the legislature's faithful agents);
52. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARv. J.L. & PUB. POL'Y 61, 63 (1994) (arguing that the exercise of expansive judicial power in the interpretation of statutes "is objectionable on grounds of democratic theory as well as on grounds of predictability").
53. Some commentators employ different terminology to capture the same concept. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court 1993 Term: Foreword: Law as Equilibrium, 108 HARv. L. REV. 26, 68 (1994) (referring to "textual," "referential," and "substantive" canons);
54. Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. CHI. L. REV. 329, 356 (2007) (book review) (adopting distinction between "descriptive" tools used in "the search for a statute's intended meaning" and "normative canons" reflecting values derived from "our Constitution or other aspects of our legal traditions").
55. Other examples are "the rule against surplusage" (a statute should not be interpreted in a way that will render a word superfluous), "in pari materia" (words must be construed in the context of the whole statute), the presumption that identical words in a statute have identical meaning, and the rule that words ought to be given their common meaning unless they are terms of art.
56. That is not to say that linguistic canons are always successful in that pursuit. Some claim that linguistic canons do not accurately describe patterns of language and grammar. See, e.g., William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. CHI. L. REV. 671, 676 (1999) ("Although [inclusio unius] is one of the most frequently invoked linguistic canons, it strikes me as an unreliable rule of thumb about the ordinary use of language."). If one could demonstrate, through empirical research or otherwise, that Congress does not write statutes against the backdrop of these supposedly shared conventions, the rationale for their existence would evaporate. Linguistic canons are designed to effectuate legislative intent, and if they do so poorly, there is no reason to employ them.
57. See, e.g.. United States v. Santos, 128 S. Ct. 2020, 2025 (2008). Sometimes, however, the rule of lenity is described as a rule of narrow construction, permitting a court to adopt a less plausible but bearable construction that criminalizes less conduct.
58. See Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 CASE W. RES. L. REV. 581, 582 (1990) (lamenting lenity's conflict with legislative supremacy insofar as it requires a judge to adopt "not the most plausible meaning [a criminal statute's] language reasonably conveys, but the meaning that renders the least conduct unlawful - or perhaps the meaning that renders merely less conduct unlawful").
59. See, e.g., Jean v. Nelson, 472 U.S. 846, 854 (1985) (opining that courts should avoid an interpretation that would provoke a serious constitutional question unless doing so would "press statutory construction 'to the point of disingenuous evasion'"
60. (quoting United States v. Locke, 471 U.S. 84, 96 (1985)));
61. NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979) (holding that the Court would adopt any other plausible interpretation of a statute "in the absence of a clear expression of Congress' intent" to provoke consideration of "difficult and sensitive" First Amendment questions).
62. See, e.g., Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (invoking canon that '"an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains'"
63. (quoting Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804))). Some consider Charming Betsy a precursor to the avoidance doctrine.
64. See, e.g., Frederick Schauer, Ash wander Revisited, 1995 SUP. CT. REV. 71, 73 n.9. Because, however, these canons protect distinct norms and have developed separately in the cases, I treat them separately here.
65. Part IV explains that canons like avoidance and Charming Betsy function in the same way as clear statement rules even though they are not given that label.
66. See, e.g.. United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 35 (1992);
67. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990).
68. See, e.g., Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991).
69. See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 464 (1991).
70. See, e.g.. South Dakota v. Bourland, 508 U.S. 679, 686-687 (1993).
71. See, e.g.. Chambers v. NASCO, Inc., 501 U.S. 32, 47-48 (1991);
72. Link v. Wabash R.R., 370 U.S. 626, 630-32 (1962). The Court has applied a similar rule to statutes that infringe upon executive authority.
73. See, e.g., Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988) ("[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.").
74. Caleb Nelson, What Is Textualism?, 91 VA. L. REV. 347, 384 (2005).
75. Cf. Zachary Price, The Rule of Lenity as a Rule of Structure, 72 FORDHAM L. REV. 885, 911 (2004).
76. In United States v. Santos, Justice Scalia, writing for the Court, identified a cluster of concerns, both constitutional and extraconstitutional, underlying lenity. 128 S. Ct. 2020, 2025 (2008) ("This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress's stead.").
77. Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 GEO. LJ. 479, 495-497 (1998) (describing this argument without subscribing to it).
78. Id. at 526 (arguing that Charming Betsy protects the principle that "the political branches should decide when and how the United States violates international law");
79. Bellia A.J. Clark Bradford R. B.R. The federal common law of nations Colum. L. Rev. 2009 109 1. 63-64.
80. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. REV. 921, 944 (1992);
81. see also Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. REV. 1389, 1422 (2005) (describing canons as "buffering devices" designed less to enforce the values associated with any particular canon than to avoid "unnecessary interbranch and intergovernmental friction").
82. See Eskridge, supra note 29, at 678-682
83. I am concerned here with the interpretation of statutes by federal courts, and I put aside the questions that arise when members of the executive branch interpret statutes.
84. SCALIA, supra note 7, at 29.
85. Philip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Court, 93 CAL. L. REV. 397, 446 (2005).
86. See supra note 41 and accompanying text.
87. See, e.g., Bradley, supra note 41, at 507, 517-18;
88. Frank H. Easterbrook, Statutes' Domains, 50 U. Cm. L. REV. 533, 545 (1983) ("The 'clear statement' principle usually fails as a useful tool of construction because it cannot demonstrate why the legislature would have wanted the court to hesitate just because the subject matter of the law is 'sensitive.' Likely it thinks that making hard decisions in sensitive areas is what courts are for.");
89. Ernest A. Young, Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review, 78 TEX. L. REV. 1549, 1586 (2000).
90. See, e.g., SCALIA, supra note 7, at 27-29.
91. Eskridge, supra note 29, at 682. State legislatures have sometimes been quite clear that canons do not represent what they would want. Numerous state legislatures have passed statutes attempting to do away with the rule of lenity, but the highest courts in those states have continued to apply the rule anyway. See Price, supra note 40, at 902;
92. cf. John Copeland Nagle, Waiving Sovereign Immunity in an Age of Clear Statement Rules, 1995 Wis. L. REV. 771, 834 ("The legislative supremacy concern becomes even greater when Congress routinely displays less concern for the value that courts are so eager to protect with a clear statement rule.").
93. See, e.g., SCALIA, supra note 7, at 25-27 (praising linguistic canons as common-sense formulations). Because linguistic canons are rules of thumb about how English speakers use language, textualists find them valuable to the project of determining how a statutory provision would be understood by a skilled user of the language.
94. Stare decisis can cause similar conflicts with faithful agency: federal courts permit the institutional interest in stability to trump the obligation of faithful agency every time that they employ stare decisis to adhere to a prior erroneous interpretation of a statute. This conflict would be eliminated if courts abandoned their current rule giving statutory decisions "super strong" stare decisis effect in favor of a weaker presumption that prior interpretations are valid if they are reasonable. See generally Amy Coney Barrett, Stare Decisis and Due Process, 74 U. COLO. L. REV. 1011 (2003) (arguing that the application of a strict rule of stare decisis in any case is in significant tension with the constitutional guarantee of due process);
95. Amy Coney Barrett, Statutory Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317 (2005) (arguing that "super strong" statutory stare decisis is unwarranted particularly when applied by the courts of appeals).
96. SCALIA, supra note 7, at 29 ("The rule that statutes in derogation of the common law will be narrowly construed seems like a sheer judicial power-grab.").
97. Id. at 28 (rejecting the canon that remedial statutes are to be broadly construed as one used "to devastating effect").
98. Altria Group, Inc. v. Good, 129 S. Ct. 538, 558 (2008) (Thomas, J., dissenting);
99. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 544-48 (1992) (Scalia, J., dissenting) (arguing that the presumption against preemption has no place in the construction of an express preemption clause).
100. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 345-46 (1998) (Thomas, J.) (accepting canon); id. at 356 (Scalia, J., concurring in the judgment);
101. Almendarez-Torres v. United States, 523 U.S. 224, 270 (1998) (Scalia, J., dissenting) ("The doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one," for that "would deprive the doctrine of all function").
102. See, e.g., United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (Scalia, J.) (endorsing and applying rule of lenity);
103. Pasquantino v. United States, 544 U.S. 349, 382 (2005) (Thomas, J.) ("We have long held that, when confronted with 'two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.'"
104. (quoting McNally v. United States, 483 U.S. 350, 359-360 (1987))).
105. See, e.g., F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 176 (2004) (Scalia, J., with Thomas, J., concurring in the judgment) (endorsing "the principle that statutes should be read in accord with the customary deference to the application of foreign countries' laws within their own territories");
106. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814-21 (1993) (Scalia, J., dissenting) (endorsing and applying the Charming Betsy canon).
107. See, e.g., United States v. Williams, 514 U.S. 527, 541 (1995) (Scalia, J., concurring) ("I acknowledge the rule requiring clear statement of waivers of sovereign immunity and I agree that the rule applies even to determination of the scope of explicit waivers.");
108. United States v. Nordic Vill., Inc., 503 U.S. 30, 35 (1992) (Scalia, J.) (applying canon to hold that the Bankruptcy Code does not waive the sovereign immunity of the United States from an action seeking monetary relief in bankruptcy);
109. Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991) (Scalia, J.) (applying the canon to hold that a statute granting federal jurisdiction over suits brought by Indian tribes did not abrogate the slates' sovereign immunity from suit).
110. See, e.g., Fla. Dep't of Revenue v. Piccadilly Cafeterias, Inc., 128 S. Ct. 2326, 2336-38 (2008) (Thomas, J.) (maintaining that Congress's intent must be clearly expressed before the Court will interpret a federal statute to exempt a debtor from state taxation);
111. BFP v. Resolution Trust Corp., 511 U.S. 531, 544 (1994) (Scalia, J.) (refusing to interpret a statute "[t]o displace traditional state regulation" unless Congress's intent to do so was clear from the statute).
112. See, e.g.. South Dakota v. Bourland, 508 U.S. 679, 686-87 (1993) (Thomas, J.) (asserting that the Court will not interpret a statute to abrogate the treaty rights of Indians unless "Congress clearly expresses] its intent to do so");
113. County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992) (Scalia, J.) ("When we are faced with ... two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court's Indian jurisprudence: '[Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.'"
114. (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985)) (alteration in the original)).
115. See, e.g., Small v. United States, 544 U.S. 385, 399 (2005) (Thomas, J., dissenting);
116. EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in the judgment).
117. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 (1997) (Thomas, J.) (applying this "time honored presumption");
118. Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994) (Scalia, J., concurring in the judgment) ("I of course agree with the Court that there exists a judicial presumption, of great antiquity, that a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary.");
119. Diaz v. Shallbetter, 984 F.2d 850, 853 (7th Cir. 1993) (Easterbrook, J.) (applying canon to preclude "retroactive change of a time limit" that would alter the rules for pending cases).
120. Manning, supra note 5, at 2465-2467
121. Cf. Chevron v. Nat. Res. Def. Council, 467 U.S. 837, 843-844 (1984) (treating statutory ambiguity as a delegation of gap-filling authority to an administrative agency).
122. Cf. Mistretta v. United States, 488 U.S. 361, 417 (1989) (Scalia, J., dissenting) ("[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine - up to a point - how small or large that degree shall be.").
123. Because this Article focuses on the federal courts' role as faithful agents of Congress, it does not consider the distinct issues raised by the federal courts' application of substantive canons in the interpretation of state statutes. Cf. William K. Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 CORNELL L. REV. 831, 836 n.14 (2001) (questioning whether federal courts have the authority to apply the avoidance canon in the interpretation of state statutes).
124. See supra notes 5-7 and accompanying text.
125. SCALIA, supra note 7, at 23 ("A text should not be construed strictly, and it should not be construed leniently; rather, it should be construed reasonably, to include all that it fairly means.").
126. Justice Scalia's dissent in Smith v. United States, 508 U.S. 223 (1993), is an example of the textualist approach to language. There, Justice Scalia protested that a statutory prohibition on "us[ing] a firearm" did not apply to a defendant who uses a firearm for any purpose, including trading an unloaded firearm for drugs. While the dictionary definition of "use" would permit this broad reading. Justice Scalia argued that the word should be read in context rather than pushed for any meaning it could bear. He said that, understood in context, the statute prohibited using a gun as it is normally used: as a weapon.
127. Id. at 241-42 (Scalia, J., dissenting);
128. see also Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 HARv. J.L. & PUB. POL'Y 59, 61 (1988) ("Meaning comes from the ring the words would have had to a skilled user of words at the time, thinking about the same problem.").
129. Cf. Manning, supra note 2, at 124 ("If textualists believe, moreover, that statutes mean what a reasonable person would conventionally understand them to mean, then applying a less natural (though still plausible) interpretation is arguably unfaithful to the legislative instructions contained in the statute.").
130. As discussed above, the application of substantive canons poses a similar dilemma for purposivists. See supra note 25.
131. Cf. Bradley, supra note 41, at 484 (asking, with respect to Charming Betsy, "[W]hy U.S. courts try to construe statutes to avoid inconsistencies with international law. Where do they get the authority to apply such a rule? And why this rule and not others - for example, a rule that federal statutes should be construed so as not to be inconsistent with French law, or Talmudic law, or Plato's 'Laws'?");
132. Nagle, supra note 51, at 804 (observing that the Court has explained neither the "source of its power to establish clear statement rules" nor "the source of its power to announce any rules of statutory interpretation").
133. Manning, supra note 2, at 125;
134. see also id. at 123.
135. SCALIA, supra note 7, at 28-29; see also id. at 28; cf. Eskridge, supra note 2, at 1088 ("From a new textualist perspective the malleability and evolution of the canons ought to be alarming.").
136. See supra note 17 and accompanying text.
137. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (Frankfurter, J., concurring) ("It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.").
138. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648. 1670-1671 (2001) ("[N]either Professor Eskridge nor I have been able to find significant discussion of the norms of interpretation in the ratifying conventions as such. . . . The hard reality is that neither the framers nor the ratifiers systematically addressed, much less decisively resolved, the question of appropriate interpretive norms.").
139. See Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 521 (2003) (arguing that the founders "did not consider the Constitution's meaning to be fully settled at the moment it was written," but that they expected subsequent interpreters to settle its meaning).
140. See Manning, supra note 2, at 89-102 (tracing the Marshall Court's invocations of faithful agency and the equity of the statute); Yoo, supra note 16, at 1615-1629
141. I did not include state cases in this study because state constitutions often distribute power differently than does the United States Constitution, making the behavior of state judges a less reliable gauge of the scope of federal judicial power.
142. For the sake of completeness, the end of Section A briefly describes other substantive canons commonly discussed today that appear in the federal reporters between 1789 and 1840. See infra Part II. A.7.
143. I have deliberately omitted the absurdity doctrine and the "equity of the statute" doctrine from this historical survey, given the exhaustive study of those doctrines already undertaken by others. See sources cited supra notes 2, 47. Because my project concerns substantive canons, I also put to one side the many cases during this period in which federal courts employed linguistic canons.
144. For example, the Charming Betsy canon surfaced in the early 1800s but was not applied with any regularity until the twentieth century. See infra Part II.A.2. The avoidance canon surfaced in the 1800s, most clearly in the opinions of Justice Story, but was not solidified in the interpretive lexicon until the late nineteenth century. See infra Part II.A.3. The Indian canon emerged in the interpretation of treaties and did not shift to the statutory context until the late nineteenth century. See infra Part II.A.6. The basic principle that the sovereign is exempt from its own statutes is of ancient origin, but was not applied to waivers and abrogations of sovereign immunity until the twentieth century. See infra Part II.A.5. Of the six canons discussed, the rule of lenity and the presumption against retroactivity have remained the most consistent over time. See infra Parts II.A.l, II.A.4.
145. See infra Part III.
146. Samuel E. Thome, Preface to A DISCOURSE UPON THE EXPOSICION AND UNDERSTANDINGE OF STATUTES, at v (Samuel E. Thome ed., Lawbook Exchange, Ltd. 2003) (1942) [hereinafter DISCOURSE]. The Thome edition is based upon two copies written early in Queen Elizabeth's reign, which extended from 1558 until 1603. According to Thorne, "the history of statutory interpretation begins in the sixteenth century, after the Year Books had come to a close and the great outburst of legislation that marks the reign of Henry VIII had been concluded." Samuel E. Thorne, Introduction to DISCOURSE, supra, at 3. He claims that the Discourse was written prior to 1571, and probably prior to 1567, when the separation of judicial and parliamentary power was bringing the problem of statutory interpretation into focus. "This short tract," he claims, "thus represents perhaps the earliest attempt to deal with a difficulty that was then presenting itself only vaguely but was to become increasingly sharper and more troublesome - the preservation of a balance between parliamentary authority and the administration of justice."
147. Id. at 11.
148. DISCOURSE, supra note 86, at 154-155
149. See Price, supra note 40, at 897 (recounting lenity's origins);
150. see also G.A. ENDLICH, A COMMENTARY ON THE INTERPRETATION OF STATUTES § 329, at 452 (Jersey City, N.J., Frederick D. Linn & Co. 1888).
151. 1 WILLIAM BLACKSTONE, COMMENTARIES *88.
152. Indeed, a review of early federal case law leaves one with the distinct impression that lenity was the most commonly applied substantive canon of construction. My searches yielded far more cases applying the rule of lenity than any other canon.
153. The earliest case invoking the doctrine of lenity appears to be Bray v. The Atalanta, A F. Cas. 37, 38 (D.S.C. 1794) (No.1819) ("[I]t is a penal law and must be construed strictly.").
154. The rule was applied not only to criminal statutes, but also to civil statutes considered penal by virtue of their stiff penalties. For example, the rule of lenity was routinely applied to forfeiture statutes. E.g., Schooner Paulina's Cargo v. United States, 11 U.S. (7 Cranch) 52, 67-68 (1812);
155. Shipp v. Miller's Heirs, 15 U.S. (2 Wheat.) 316, 325 (1817);
156. Carver v. Astor, 29 U.S. (4 Pet.) 1, 92-93 (1830);
157. Ronkendorff v. Taylor's Lessee, 29 U.S. (4 Pet.) 349, 357, 359 (1830);
158. United States v. Eighty-Four Boxes of Sugar, 32 U.S. (7 Pet.) 453, 462-63 (1833);
159. The Enterprise, 8 F. Cas. 732, 734 (Livingston, Circuit Justice, C.C.D.N.Y. 1810) (No.4499);
160. Six Hundred and Fifty-One Chests of Tea v. United States, 22 F. Cas. 253, 257 (Thompson, Circuit Justice, C.C.S.D.N.Y. 1826) (No. 12,916);
161. United States v. Open Boat, 27 F. Cas. 354, 356 (Story, Circuit Justice, C.C.D. Me. 1829) (No. 15,968);
162. Swift v. The Happy Return, 23 F. Cas. 560, 561 (D. Pa. 1799) (No. 13,697);
163. Knagg v. Goldsmith, 14 F. Cas. 740, 742 (E.D. Pa. 1831) (No. 7872);
164. see also ENDLICH, supra note 88, §331, at 456 ("It is immaterial, for the purpose of the application of the rule of strict construction, whether the proceeding prescribed for the enforcement of the penal law be criminal or civil.").
165. For an exception, see Schooner Paulina's Cargo, 11 U.S. (7 Cranch) at 67-68 ("What follows [in the statute] is expressed with some confusion and would not seem to constitute the most essential part of the sentence. It cannot be believed that the legislature could intend to inflict so heavy a forfeiture under such cloudy and ambiguous terms.").
166. See, e.g.. United States v. Mann, 26 F. Cas. 1153, 1157 (Story, Circuit Justice, C.C.D.N.H. 1812) (No.15,718);
167. United States v. Wilson, 28 F. Cas. 699, 709 (Baldwin, Circuit Justice, C.C.E.D. Pa. 1830) (No. 16,730) ("[The rule of lenity] is founded on the tenderness of the law for the rights of individuals..."). For the suggestion that lenity also serves to reinforce the constitutional separation of powers, see infra note 103.
168. The Enterprise, 8 F. Cas. at 734;
169. see also United States v. Thirty-One Boxes, etc., 28 F. Cas. 56, 59 (S.D.N.Y. 1833) (No.16,465a) ("It is believed no sound administration of penal law can permit a range so unlimited and hazardous to language of a very equivocal import.").
170. The Adventure, 1 F. Cas. 202, 204 (Marshall, Circuit Justice, C.C.D. Va. 1812) (No.93).
171. Ronkendorff, 29 U.S. (4 Pet.) at 361; The Hawke, 26 F. Cas. 233, 234-35 (D.S.C. 1794) (No.15,331); The Enterprise, 8 F. Cas. at 734 ("When the sense of a penal statute is obvious, consequences are to be disregarded; but if doubtful, they are to have their weight in its interpretation.");
172. Wilson, 28 F. Cas. at 709; The Nymph, 18 F. Cas. 506, 508 (Story, Circuit Justice, C.C.D. Me. 1834) (No. 10,388).
173. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820);
174. see also Prescott v. Nevers, 19 F. Cas. 1286, 1288-89 (Story, Circuit Justice, C.C.D. Me. 1827) (No.11,390) (applying lenity to choose between two interpretations, "one of which satisfies the terms, and stops at the obvious mischief provided against, and the other goes to an extent, which may involve innocent parties in its penalties");
175. United States v. Shackford, 27 F. Cas. 1038, 1039 (Story, Circuit Justice, C.C.D. Me. 1830) (No. 16,232) (asserting that when "either of the two constructions may be adopted, and each tallies with the language, and interferes with no known policy of the act, that ought to be adopted which is most liberal to the citizen, and burthens him with the least restraints").
176. United States v. Palmer, 16 U.S. (3 Wheat.) 610, 628-29 (1818)
177. (refusing to apply lenity when the best construction of the statute included the offense, even though the defendant's proposed narrower construction was grammatically possible);
178. The Emily, 22 U.S. (9 Wheat.) 381, 388 (1824) ("In construing a statute, penal as well as others, we must look to the object in view, and never adopt an interpretation that will defeat its own purpose, if it will admit of any other reasonable construction.");
179. Am. Fur Co. v. United States, 27 U.S. (2 Pet.) 358, 367 (1829) (maintaining that lenity does not justify the adoption of the most lenient interpretation the language will bear, for "even penal laws . . . ought not be construed so strictly as to defeat the obvious intention of the legislature");
180. United States v. Bailey, 34 U.S. (9 Pet.) 238, 256 (1835) (choosing the best construction of a statute over a narrower, plausible one);
181. The Industry, 13 F. Cas. 35, 36 (Story, Circuit Justice, C.C.D. Mass. 1812) (No.7028) (refusing to apply lenity where narrow construction was a plausible, but not the best, interpretation of a statute);
182. United States v. Hare, 26 F. Cas. 148, 156 (C.C.D. Md. 1818) (No. 15,304) (maintaining that even in the face of ambiguity, when lenity applies, it cannot be applied to undermine the statutory scheme);
183. United States v. Moulton, 27 F. Cas. 11, 14 (Story, Circuit Justice, C.C.D. Mass. 1830) (No. 15,827) ("The natural sense of the terms of the act ought to be adopted unless the context affords clear proof of some more restrictive application of them.");
184. United States v. Winn, 28 F. Cas. 733, 734 (Story, Circuit Justice, C.C.D. Mass. 1838) (No. 16,740) ("The most restricted sense, then, is not as a matter of course to be adopted as the true sense of the statute, unless it best harmonizes with the context, and stands best with the words and with the mischiefs to be remedied by the enactment.");
185. The Harriet, 11 F. Cas. 588, 589 (Story, Circuit Justice, C.C.D. Me. 1840) (No. 6099) (maintaining that lenity did not justify the court in choosing the narrower, though plausible, interpretation over the best interpretation).
186. Writing in 1857, Theodore Sedgwick observed that the rule of lenity has in modem times been so modified and explained away, as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope. THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW 326 (New York, J.S. Voorhies 1857).
187. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820).
188. Consider also the argument of the United States in United States v. Moulton: In the United States, where the laws are not written in blood, and where the people are governed by a mild and merciful system established by themselves, there has been less disposition in the courts than in England, to favour fanciful constructions of penal statutes enabling offenders to elude justice. ... In the supreme court of the United States, as well as in this court, it has been declared, that though penal laws are to be construed strictly, they are not to be construed so as to defeat the obvious intention of the legislature.
189. F. Cas. at 13. Justice Story, who decided the case on circuit, accepted the United States' argument, emphasizing that [C]ourts of law, in cases of capital felonies, have been very astute, perhaps unjustifiably so, to escape from the literal meaning of the words, and to create conjectural exceptions. Such a proceeding, if it may be properly allowed in cases affecting life, is wholly inapplicable to cases of mere misdemeanors, and to other cases not capital.
190. Id. at 14;
191. see also United States v. Chaloner, 25 F. Cas. 392, 393 (D. Me. 1831) (No.14,777).
192. The Enterprise, 8 F. Cas. at 734;
193. see also Schooner Paulina's Cargo v. United States, 11 U.S. (7 Cranch) 52, 61 (1812) (maintaining that while courts must effect legislative intention in construing penal statutes, they may not extend the reach of a penal statute "for the purpose of effecting legislative intention");
194. Wiltberger, 18 U.S. (5 Wheat.) at 96 ("It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated.");
195. United States v. Morris, 39 U.S. (14 Pet.) 464, 475 (1840);
196. United States v. Mann, 26 F. Cas. 1153, 1157 (Story, Circuit Justice, C.C.D.N.H. 1812) (No.15,718) ("We cannot assume a jurisdiction to moderate the promulgated sentence of the legislature, neither ought we to increase its severity by enlarging doubtful expressions.");
197. United States v. Open Boat, 27 F. Cas. 354, 357 (Story, Circuit Justice, C.C.D. Me. 1829) (No. 15,968) (asserting that lenity prevents courts from usurping legislative authority by extending a penal statute to encompass crimes within its mischief but outside of its text);
198. Wilson, 28 F. Cas. at 709 (explaining that lenity does not defeat legislative intent, but it does prevent a court from extending the law to encompass crimes within the mischief, but beyond the provisions, of a law);
199. The Nymph, 18 F. Cas. at 507 (claiming that lenity constrains a court from "enlarg[ing] penal statutes by implication," but does not permit a court "to fritter [legislative intent] upon metaphysical niceties");
200. Winn, 28 F. Cas. at 734 (describing the "true and sober sense" of lenity as meaning not that the narrower construction always prevails, but that "penal statutes are not to be enlarged by implication, or extended to cases not obviously within their words and purport");
201. Taber v. United States, 23 F. Cas. 611,613 (Story, Circuit Justice, C.C.D. Mass. 1839) (No. 13,722) (applying the doctrine in order to construe the meaning of "a vessel bound on a foreign voyage").
202. But see United States v. Fairclough, 25 F. Cas. 1037, 1039 (Washington, Circuit Justice, C.C.E.D. Pa. 1823) (No. 15,068) (holding that a court could depart from the literal meaning of a penal statute "when the evident intention of the legislature is different from the literal import of the words employed to express it in").
203. Wilson, 28 F. Cas. at 709 (describing lenity as rooted both in tenderness to the accused and the principle that "it is the legislature and not the court which is to define a crime and ordain the punishment").
204. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,118 (1804).
205. Id. at 118-119
206. Id. at 65-66.
207. Id. at 118.
208. Id. at 120.
209. Id. at 118.
210. Id. at 120.
211. Id. ("Indeed the very expressions of the act would seem to exclude a person under the circumstances of Jared Shattuck. He is not a person under the protection of the United States").
212. Jones v. Walker, 13 F. Cas. 1059, 1064 (Jay, Circuit Justice, C.C.D. Va. 1800) (No.7507). Jones is different from the other cases discussed in this subsection because the federal court was construing a state statute. Even in that context, however, the law of nations canon might be deployed to promote substantive values like the law of nations itself or the role of the political branches of the federal government in determining when to breach it.
213. Id. Jay held that British subjects were not altogether precluded from bringing suit in Virginia courts; rather, they were precluded from recovering on debts that they had fraudulently assigned to citizens during the war. This construction "left British subjects precisely under the same, and no other disabilities, than the laws of war and nations had already placed them - the object of the act being only to provide against the evils of fraudulent and collusive assignments."
214. Id.
215. Talbot v. Seeman, 5 U.S. (1 Cranch) 1,43 (1801).
216. Id.
217. Id.
218. Id. (reasoning that if the statute did not apply, then Talbot was entitled to the lower rate of salvage authorized by the law of nations).
219. Id.
220. Id. at 44.
221. The same is true of Chief Justice Marshall's opinion for the Court in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), where he read an otherwise unqualified jurisdictional grant impliedly to exempt public ships of war belonging to countries at peace with the United States. Marshall argued that "until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise."
222. Id. at 146. It is important to emphasize, however, that when a statute was susceptible to no other interpretation other than one conflicting with the law of nations, the Court considered itself bound to enforce the statute as written.
223. See The Schooner Adeline, 13 U.S. (9 Cranch) 244, 287 (1815) (enforcing a statute departing from the law of nations because "the statute is expressed in clear and unambiguous terms");
224. The Marianna Flora, 24 U.S. (11 Wheat.) 1, 39-40 (1826) (maintaining that "whatever may be the responsibility incurred by the nation to foreign powers, in executing such laws, there can be no doubt that Courts of justice are bound to obey and administer them").
225. See Bradley, supra note 41, at 487 (hypothesizing that Marshall may have had Rutgers in mind when he decided Charming Betsy). In Rutgers, the court said that "[t]he repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the Legislature passed this statute; and we think ourselves bound to exempt that law from its operation." 1 THE LAW PRACTICE OF ALEXANDER HAMILTON 417 (Julius Goebel ed., 1964).
226. Bradley, supra note 41, at 487-88. The absence of the canon in English treatises addressing statutory interpretation indicates its absence from English practice. Neither the sixteenth century Discourse nor Blackstone's Commentaries (either in his list of interpretive maxims or in his chapter devoted to the law of nations) mentions anything resembling the rule applied in Charming Betsy.
227. See 1 BLACKSTONE, supra note 89, at *58-92;
228. DISCOURSE, supra note 86. Nor is the canon discussed in Giles Jacob's dictionary.
229. GILES JACOB & T.E. TOMLINS, LAW-DICTIONARY: EXPLAINING THE RISE, PROGRESS, AND PRESENT STATE, OF THE ENGUSH LAW 118-123 (Philadelphia, P. Byrne 1811) (devoting a significant section to statutory interpretation). Jacob published the first edition of this book in 1729, and the book was frequently republished thereafter. The 1811 Philadelphia edition is the first American edition.
230. Bradley, supra note 41, at 488;
231. see also id. at 488 n.44 (describing the argument that the canon might instead derive from the maxim "that the legislature does not intend to exceed its jurisdiction").
232. 124 See supra note 122.
233. See Frederick C. Leiner, The Charming Betsy and the Marshall Court, 45 AM. J. LEGAL HIST. 1, 18 (2001) ("To the Marshall court, the importance of the Charming Betsy case was not the rule of construction generations of lawyers have come to cite ... but the reinforcement of international law norms at a time when a militarily weak neutral nation with extensive mercantile interests at stake desperately wanted the law respected.").
234. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43-44 (1801);
235. see also Jones v. Walker, 13 F. Cas. 1059, 1064 (Jay, Circuit Justice, C.C.D. Va. 1800) (No.7507) (asserting that "[i]t would be odious to presume that the design of the [Virginia] act" was in conflict with the law of nations).
236. Talbot, 5 U.S. (1 Cranch) at 43.
237. Id. at 44.
238. See supra notes 46-51 and accompanying text.
239. I found only two cases other than those described above: The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812) and The Marianna Flora, 24 U.S. (11 Wheat.) 1, 39-40(1826). See supra note 120.
240. Nor did James Wilson mention the doctrine in his discourse on the law of nations. 1 JAMES WILSON, THE WORKS OF JAMES WILSON 148-67 (Robert Green McCloskey ed., Belknap Press 1967) (1804). Story's Conflict of Laws does not mention the maxim.
241. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS, FOREIGN AND DOMESTIC, IN REGARD TO CONTRACTS, RIGHTS, AND REMEDIES, ESPECIALLY IN REGARD TO MARRIAGES, WILLS, SUCCESSIONS, AND JUDGMENTS (Boston, Hilliard, Grey, and Co. 1834). Near the end of the nineteenth century, some treatises were reporting the maxim.
242. See, e.g.. ENDLICH, supra note 88, §174, at 239. Henry Campbell Black refers to the principle that "[i]n case of doubt, a statute should be so construed as to harmonize and agree with the rules and principles of international law, and to respect rights and obligations secured by treaties, rather than to violate them" HENRY CAMPBELL BLACK, HANDBOOK ON THE CONSTRUCTION AND INTERPRETATION OF THE LAWS 106-07 (2d ed. 1911). Black does not, however, cite Charming Betsy; he focused more on treaties.
243. Roger P. Alford, Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy, 67 OHIO ST. L.J. 1339, 1352 (2006). And even while the canon has "come into its own," modern federal courts apply it less often than canons like lenity and avoidance. Alford, for example, says that "the Supreme Court has expressly relied upon the Charming Betsy doctrine in approximately a dozen cases in the last one hundred years."
244. Id. at 1353. That statistic, however, may be more a function of the frequency with which federal courts interpret statutes arguably infringing upon international law than a measure of judicial devotion to the canon.
245. John Copeland Nagle, Delaware & Hudson Revisited, 72 NOTRE DAME L. REV. 1495, 1496 (1997).
246. Id. at 1496.
247. Id. at 1496-1497
248. 213 U.S. 366 (1909).
249. 297 U.S. 288, 348 (1936) (Brandeis, J. concurring).
250. 138 Nagle, supra note 133, at 1497 (citing Ashwander, 297 U.S. 288).
251. 19 CHARLES VINER, GENERAL ABRIDGMENT OF LAW AND EQUITY, ALPHABETICALLY DIGESTED UNDER PROPER TITLES; WITH NOTES AND REFERENCES TO THE WHOLE 528 (London, 1793) (1744). Indeed, at some level, any maxim instructing a court to avoid an undesirable interpretation of a statute might be thought a forerunner of the avoidance canon. For example, courts were instructed to avoid interpretations that rendered a statute absurd or retroactive.
252. FORTUNATOS DWARRIS, A GENERAL TREATISE ON STATUTES; AND THEIR RULES OF CONSTRUCTION 80 (Philadelphia, John S. Littell 1835). But while such canons illustrate a common interpretive technique of avoiding the undesirable, none is an effort to avoid the particular undesirable consequence, namely conflict with the Constitution, with which the avoidance canon is concerned.
253. 140 Bonham's Case, (1610) 8 Co. Rep. 133 b, 77 Eng. Rep. 646, 652 (K.B.).
254. Cf. ENDLICH, supra note 88, §178, at 246 (describing avoidance canon as "[a] presumption of much importance in this country, but, of course unknown in England, where the courts cannot question the authority of Parliament, or assign any limits to its power").
255. Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1796).
256. See, e.g., Odder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) ("[A]s the authority to declare [a statute] void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.");
257. Cooper v. Telfair, 4 U.S. (4 Dall.) 14,19 (1800) (Paterson, J.) ("[T]o authorise this court to pronounce any law to be void, it must be a clear, unequivocal breach of the constitution; not a doubtful and argumentative implication.");
258. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810) ("But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.");
259. Ogden v. Saunders, 25 U.S. (2 Wheat.) 213, 294 (1827) (Thompson, J.) (articulating a "clear conflict" rule);
260. Adams v. Storey, 1 F. Cas. 141, 142 (Livingston, Circuit Justice, C.C.D.N.Y. 1817) (No. 66) ("If, then, by any fair and reasonable interpretation, where the case is at all doubtful, the law can be reconciled with the constitution, it ought to be done, and a contrary course pursued only, where the incompatibility is so great as to render it extremely difficult to give the latter effect, without violating some provision of the former.");
261. Bonaparte v. Camden & A.R. Co., 3 F. Cas. 821, 827-28 (Baldwin, Circuit Justice, C.C.D.N.J. 1830) (No. 1617) (requiring a "clear conviction" that the law in question is in conflict with the constitution of the state);
262. United States v. The William, 28 F. Cas. 614, 616-620 (D. Mass 1808) (No. 16,700) (defending the power of judicial review, but providing that it ought to be exercised to hold a law void only in cases of exceedingly clear conflict).
263. Soc'y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 769 (Story, Circuit Justice, C.C.D.N.H. 1814) (No.13,156). There are earlier cases that, while not stating the avoidance canon directly, do generally caution that courts should, where possible, construe statutes to be consistent with the Constitution.
264. See, e.g., Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14 (1800) ("[T]he 11th section of the judiciary act can, and must, receive a construction, consistent with the constitution.");
265. see also United States v. Schooner Betsey and Charlotte, and Her Cargo, 8 U.S. (4 Cranch) 443, 448 (1808) (argument of counsel) ("The 9th section of the judiciary act is to be construed with a reference to the meaning of those expressions in the constitution; and if it cannot, consistently with the force of its terms, be reconciled with the constitution, it must yield to the superior obligation of that instrument.").
266. Wheeler, 22 F. Cas. at 769.
267. United States v. Coombs, 37 U.S. (12 Pet.) 72, 75 (1838).
268. Id. at 76;
269. see also Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 448-49 (1830) ("No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.");
270. Ex parte Randolph, 20 F. Cas. 242, 254 (Marshall, Circuit Justice, C.C.D. Va. 1833) ("No questions can be brought before a judicial tribunal of greater delicacy than those which involve the constitutionality of a legislative act. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be determined on other points, a just respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed.").
271. The Court similarly emphasized that the plain meaning controls when it applied the English maxim, see supra note 139, that statutes should be construed so as to avoid injustice. For example, in Evans v. Jordan, Chief Justice Marshall opined: That an act ought so to be construed as to avoid gross injustice, if such construction be compatible with the words of the law, will not be controverted;
272. but this principle is never to be carried so far as to thwart that scheme of policy which the legislature has the power to adopt. To that department is confided, without revision, the power of deciding on the justice as well as wisdom of measures relative to subjects on which they have the constitutional power to act. Wherever, then, their language admits of no doubt, their plain and obvious intent must prevail. 8 F. Cas. 872, 873 (Marshall, Circuit Justice, C.C.D. Va. 1813) (No.4564). When the case went before the Supreme Court on appeal, Justice Washington wrote an opinion similarly expressing the view that it was beyond the power of the Court to alter the plain language of the statute, however just such an alteration might be. Evans v. Jordan, 13 U.S. (9 Cranch) 199, 202-04 (1815);
273. see also Minge v. Gilmour, 17 F. Cas. 440, 444 (Iredell, Circuit Justice, C.C.D.N.C. 1798) (No. 9631) (arguing that a court should construe an act consistently with natural justice, "but, if the words are too plain to admit of more than one construction, and the provisions be not inconsistent with any articles of the constitution, I am of opinion, for the reason I have given, that no court has authority to say the act is void because in their opinion it is not agreeable to the principles of natural justice").
274. See BLACK, supra note 131, at 114;
275. ENDLICH, supra note 88, §178, at 246 (describing avoidance canon as rooted in legislative intent);
276. cf. Minge, 17 F. Cas. at 444 (urging courts to construe acts to be consistent with natural justice, "it being most probable that, by such construction, the true design of the legislature will be pursued").
277. See supra notes 96-100 and accompanying text.
278. Because the avoidance canon was not a feature of English common law,
279. see supra note 141, it obviously does not appear in commonly used eighteenth century English treatises like Blackstone, Charles Viner, and Giles Jacob.
280. See BLACKSTONE, supra note 89; 6 JACOB & TOMLINS, supra note 122; VINER, supra note 139. As for American treatises, no discussion of avoidance appears in St. George Tucker's editorial notes to his edition of Blackstone.
281. See BLACKSTONE'S COMMENTARIES, ST. GEORGE TUCKER (Philadelphia, William Young Birch & Abraham Small 1803).
282. James Wilson's Works offers only a few observations on statutory interpretation, and none is directed to the principle of avoidance. WILSON, supra note 131. Kent's Commentaries contains a defense of judicial review, but no discussion of the avoidance canon. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW *243 (Boston, Little, Brown & Co. 1873).
283. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §1772 (1891) (Boston, Hilliard & Gray 1833).
284. The 1835 American republication of the original 1831 London edition of Dwarris's widely used Treatise on Statutes does not include the maxim, see DwARRIS, supra note 139, but it is significant that the first American edition of the treatise, edited by Piatt Potter and published in 1871, does include it. See FORUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES; AND THEIR RULES OF CONSTRUCTION 111 n.8 (Piatt Potter ed., 1871);
285. see also JOEL PRENTISS BISHOP, COMMENTARIES ON THE WRITTEN LAWS AND THEIR INTERPRETATION § 90 (Boston, Little, Brown & Co. 1882); BLACK, supra note 131, at 110-18; ENDLICH, supra note 88, §178, at 246;
286. SEDGWICK, supra note 100, at 312-313
287. See Nagle, supra note 133, at 1498-1499 n.17.
288. BLACKSTONE, supra note 89, at *46;
289. HENRICI DE BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 181 (George E. Woodbine ed., Samuel E. Thorne trans., Harvard Univ. Press 1968-1977) (1569), available at http://hlsl5.law.harvard.edu/bracton;
290. EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND 95 (London, E & R Brooke 1797). Civil law writers such as Puffendorf also endorsed the maxim.
291. See SEDGWICK, supra note 100, at 188-189
292. See U.S. CONST, art. I, §9, cl. 3 (forbidding Congress to pass any ex post facto law);
293. id. §10, cl. 1 (providing that no state shall "pass any ... ex post facto Law").
294. Calder v. Bull put to rest arguments that the Ex Post Facto Clauses applied to civil, as well as to criminal, cases. 3 U.S. (3 Dall.) 386, 390-91, 399-400 (1798). The only constitutional protection against ex post facto laws in civil cases comes from the Contracts Clause. U.S. CONST, art. I, §10, cl. 1 (forbidding any state to pass a "Law impairing the Obligation of Contracts").
295. For what appear to be the two earliest references to the rule, see United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103,110 (1801) (asserting in dicta that "a court will and ought to straggle hard against a construction which will, by a retrospective operation, affect the rights of parties"), and
296. Ogden v. Witherspoon, 18 F. Cas. 618, 619 (Marshall, Circuit Justice, C.C.D.N.C. 1802) (No.10,461).
297. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 287-88, 290-294 (1994) (Scalia, J., concurring).
298. Cf. Reynolds v. M'Arthur, 27 U.S. (2 Pet.) 417, 434-435 (1829) (identifying the temporal scope of a statute as a threshold question to its application).
299. United States v. Heth, 7 U.S. (3 Cranch) 399,413 (1806) (Paterson, J.).
300. Id. at 414 (Cushing, J.);
301. see also Schooner Peggy, 5 U.S. (1 Cranch) at 110 (asserting that a court should "struggle hard" against a retroactive interpretation);
302. Prince v. United States, 19 F. Cas. 1331, 1332 (Story, Circuit Justice, C.C.D. Mass. 1814) (No.11,425) ("It is a general rule, that statutes are to be construed to operate in futuro, unless from the language a retrospective effect be clearly intended.");
303. Blanchard v. Sprague, 3 F. Cas. 648, 650 (Story, Circuit Justice, C.C.D. Mass. 1839) (No. 1518) (opining that "[retroactive] interpretation is never adopted without absolute necessity; and courts of justice always lean to a more benign construction").
304. See Schooner Peggy, 5 U.S. (1 Cranch) at 110 (implying that the canon counsels a court to deviate from the best interpretation to avoid retroactivity, but holding the canon inapplicable to the present case);
305. Witherspoon, 18 F. Cas. at 619 ("I will not say at this time that a retrospective law may not be made; but if its retrospective view be not clearly expressed, construction ought not to aid it. That however is not the objection to this act.");
306. Blanchard, 3 F. Cas. at 650 (insisting that a retroactive interpretation should "never [be] adopted without absolute necessity," but holding that retroactive application was not at issue in that case);
307. see also Watson v. Mercer, 33 U.S. (8 Pet.) 88, 105, 110 (1834) (refusing to address counsel's argument that the canon requires prospective interpretation "even when [a statute's] language would have borne a different construction" and holding itself bound by state court interpretation).
308. See, e.g., Heth, 1 U.S. (3 Cranch) at 409 (Johnson, J.) (indicating that even apart from the canon, words of the act "point to a future operation");
309. id. at 411 (Washington, J.) (interpreting the act prospectively in reliance only upon language with no reference to the canon);
310. i d. at 413 (Paterson, J.) (treating the canon as a tie breaker for ambiguous language);
311. id. at 414 (Cushing, J.) (describing prospective application as the "general and true intent" of the statute);
312. see also Reynolds, 27 U.S. (2 Pet.) at 434-35 (acknowledging the canon but determining that "the language of the statute is entirely prospective");
313. Prince, 19 F. Cas. at 1332 (Story, J.) (applying canon, but also emphasizing that "there is nothing in the wording of this act, which points to a retrospective operation, and the whole intent may be satisfied by restraining it to future cases").
314. 165 3 STORY, supra note 152, §401, n.a. Indeed, for Story, the prospective operation of legislation is an example of the situation where the words are so clear that "there is generally no necessity to have recourse to other means of interpretation."
315. Id. §401.
316. SEDGWICK, supra note 100, at 202; see also Watson, 33 U.S. (8 Pet.) at 105 (argument of counsel) ("In England, where the liberty and security of the subject has no other basis to rest upon than the common law, retrospective legislation is uniformly rejected by her courts of justice.");
317. WILLIAM P. WADE, A TREATISE ON THE OPERATION AND CONSTRUCTION OF RETROACTIVE LAWS, AS AFFECTED BY CONSTITUTIONAL LIMITATIONS AND JUDICIAL INTERPRETATIONS 40 (1880) (describing the rule as "founded upon the recognized injustice of a method of making laws by which the legislature looks backward to discover past errors to be corrected and past grievances to be remedied").
318. 2 U.S. (2 Dall.) 419 (1793), superseded by U.S. CONST, amend. XI.
319. Id. at 450. On the one hand. Article III might be viewed as a federal law abrogating state sovereign immunity. On the other hand. Article III might be viewed as a waiver of state sovereign immunity insofar as states might have consented to defending citizen-suits in federal court by ratifying the Constitution. Either way, modern doctrine would require a clear statement before holding a state amenable to suit in federal court.
320. See id. at 464-66 (Wilson, J.) ("The next question under this head, is, - Has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations.... Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia.... But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself.");
321. id. at 467 (Cushing, J.) ("The judicial power, then, is expressly extended to 'controversies between a State and citizens of another State.'").
322. Rather than focusing on the showing necessary to overcome sovereign immunity. Justice Blair was at pains to show that legislative policy arguments could not overcome plain text.
323. See id. at 451 (Blair, J.) (asserting that the argument against jurisdiction based on the potential unenforceability of the judgment might be deserving of weight in "the construction of doubtful Legislative acts, but can have no force, I think, against the clear and positive directions of an act of Congress and of the Constitution"). Chief Justice Jay not only failed to mention the canon, but he applied a competing principle to construe Article III broadly.
324. See id. at 476 (Jay, C.J.) ("This extension of power is remedial, because it is to settle controversies. It is therefore, to be construed liberally. It is politic, wise, and good that, not only the controversies, in which a State is Plaintiff, but also those in which a State is Defendant, should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, unless the obvious, plain, and literal sense of the words forbid it.").
325. See id. at 430. The question whether the Constitution enables private litigants to sue the states is settled by the Eleventh Amendment.
326. See U.S. CONST, amend. XI. The question whether Congress possesses the power to abrogate this baseline immunity in reliance upon its Article I authority, or only in reliance upon its enforcement power under the Reconstruction Amendments, did not arise until much later.
327. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 15 (1989) (Brennan, J., plurality opinion),
328. overruled by Seminole Tribe of FIa. v. Florida, 517 U.S. 44 (1996);
329. Fitzpatrick v. Bitzer, 427 U.S. 445,455-56 (1976).
330. John Harrison, Sovereign Immunity and Congress's Enforcement Powers, 2006 SUP. CT. REV. 353, 358. Any question about whether a state was suable in its own courts would have been discussed in state cases, and this study concerns only federal cases. State courts, however, operated on the same assumption.
331. Id.
332. The first significant statutory waiver of federal sovereign immunity occurred in 1855, when Congress created the United States Court of Claims for the adjudication of contract disputes with the federal government. Gregory C Sisk, The Continuing Drift of Federal Sovereign Immunity Jurisprudence, 50 WM. & MARY L. REV. 517, 530-31 (2008). It was ninety more years before Congress passed the Federal Tort Claims Act, which subjected the federal government to tort liability.
333. Id. at 534.
334. Harrison, supra note 172, at 358.
335. BLACKSTONE, supra note 89, at *262.
336. 8 MATTHEW BACON, A NEW ABRIDGEMENT OF THE LAW 81-83 (Philadelphia, Thomas Davis 1845) ("[T]he king is not under the coercive power of the law .... The king, in regard to decency and order, cannot suffer a common recovery . . . .");
337. 2 BRACTON, supra note 155, at 33 ("[N]o writ runs against [the king]."); DISCOURSE, supra note 86, at 161 (arguing that "statutes that doe abridge the kynges prerogative" must be narrowly construed);
338. id. at app. II ("The king is not bound when the statute is general and at the time it is made the king will have right or prerogative; he is not bound unless it is specially provided as Magna Carta ... does not bind the king."). Appendix II of the Discourse, titled "When the king will be bound by statute," goes on to give a fairly detailed description of the principle.
339. Id.
340. see also DWARRIS, supra note 139, at 50 ("The rights of the crown can never be taken away by doubtful words, or ambiguous expressions, but only by express terms.").
341. United States v. Greene, 26 F. Cas. 33, 34 (Story, Circuit Justice, C.C.D. Me. 1827) (No.15,258). For state cases that federal courts often cited for this same principle,
342. see Inhabitants of Town of Stoughton v. Baker, A Mass. (3 Tyng) 522, 528 (1808) (invoking the maxim to hold that laches does not run against the state);
343. People v. Herkimer, A Cow. 345 (N.Y. Sup. Ct. 1825) (invoking the maxim to hold that insolvent acts did not extinguish claims of the state).
344. United States v. Hoar, 26 F. Cas. 329, 329-30 (Story, Circuit Justice, C.C.D. Mass. 1821)(No.15,373).
345. Greene, 26 F. Cas. at 34.
346. United States v. Hewes, 26 F. Cas. 297,299 (E.D. Pa. 1840) (No.15,359).
347. DWARRIS, supra note 153, at 151 ("[T]he general words of a statute do not include the government or affect its rights, unless such intention be clear and indisputable, upon the face of the act.");
348. see also 1 KENT, supra note 151, at 3; SEDGWICK, supra note 100, at 36 (indicating that the English rule "is recognized also in this country").
349. See Greene, 26 F. Cas. at 34. It is worth emphasizing that this canon of construction was not inviolate. Summarizing exceptions recognized in the cases, Henry Campbell Black observed that the sovereign is not exempt when "neither its prerogative, rights, nor property are in question." BLACK, supra note 131, at 98. Thus, the Court interpreted general procedural statutes to bind the United States as litigant.
350. See, e.g.. United States v. Knight, 39 U.S. (14 Pet.) 301, 315-316 (1840) ("[W]e feel satisfied, that when, as in this case, a statute which proposes only to regulate the mode of proceeding in suits, does not divest the public of any right, does not violate any principle of public policy; but on the contrary, makes provisions in accordance with the policy which the government has indicated by many acts of previous legislation... we shall best carry into effect the legislative intent, by construing the executions at the suit of the United States, to be embraced within the act of 1828.");
351. Green v. United States, 76 U.S. (9 Wall.) 655, 658 (1869) (holding that an evidentiary statute binds the United States because "[w]e do not see why this rule of construction should apply to acts of legislation which lay down general rales of procedure in civil actions").
352. See, e.g., Hoar, 26 F. Cas. at 329-30 (identifying sovereign prerogative as a justification for the doctrine);
353. Greene, 26 F. Cas. at 34; Hewes, 26 F. Cas. at 301;
354. see also People v. Herkimer, 4 Cow. 345, 348 (N.Y. Sup. Ct. 1825) (holding that "the same rale must prevail" in New York for "the People of the state being the sovereign, have succeeded to the rights of the King").
355. Theodore Sedgwick argued that the rule was primarily a relic of "old feudal ideas of royal dignity and prerogative" and that it should be abandoned in this country. SEDGWICK, supra note 100, at 36. Sedgwick was not opining about the wisdom of this rule when applied specifically to questions of sovereign immunity, for, as was described above, the rule was not applied in that context until the twentieth century.
356. See supra notes 172-174 and accompanying text.
357. SEDGWICK, supra note 100, at 105-106
358. Hoar, 26 F. Cas. at 330; see also Greene, 26 F. Cas. at 34-35 (rationalizing governmental exemption based primarily on legislative intent with the maxim as a secondary consideration);
359. Hewes, 26 F. Cas. at 298 ("[I]f it be the settled law, it must be presumed that congress knew it to be so, and had it on their minds in passing the act in question."). Writing early in the twentieth century, Henry Campbell Black explained it this way: It is said that laws are supposed to be made for the subjects or citizens of the state, not for the sovereign power. Hence, if the government is not expressly referred to in a given statute, it is presumed that it was not intended to be affected thereby, and this presumption, in any case where the rights or interests of the state would be involved, can be overcome only by clear and irresistible implications from the statute itself. BLACK, supra note 131, at 94-95.
360. See, e.g.. Dollar Sav. Bank v. United States, 86 U.S. (19 Wall.) 227, 239 (1873) (applying the maxim to hold that a statutory limitation on remedies did not apply to the United States);
361. United States v. Herron, 87 U.S. (20 Wall.) 251, 261 (1873) (applying the maxim to hold that discharge under the Bankruptcy Act did not extinguish the federal government's ability to collect taxes owed);
362. United States v. Nashville, Chattanooga & St Louis Ry. Co., 118 U.S. 120, 125 (1886) (applying the maxim to hold that the statute of limitations did not ran against the federal government);
363. United States v. Am. Bell Tel. Co., 159 U.S. 548, 554 (1895) (applying the maxim to hold that a limitation on the Court's appellate jurisdiction did not apply when the United States is the petitioner);
364. United States v. United Mine Workers, 330 U.S. 258, 273 (1947) (applying the maxim to hold that a provision of the Norris-LaGuardia Act divesting federal courts of jurisdiction to issue injunctions in a specified class of cases did not apply to the United States).
365. See 3 J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION §62:01 (Chicago, Callaghan & Co. 1891) (identifying the modem sovereign immunity clear statement rale, as applied to both waivers and abrogations, as a specific application of the old English maxim exempting the government from generally applicable statutes). Students of English statutory interpretation have observed that English courts have similarly applied the old maxim to the relatively new problem of interpreting statutory waivers of sovereign immunity.
366. See H. Street, The Effect of Statutes on the Rights and Liabilities of the Crown, 1 U. TORONTO L.J. 357, 381-83 (1948). Because the Crown only began to waive its sovereign immunity in the twentieth century, it was only then that English courts began fleshing out the effect of the traditional presumption on statutes dealing with sovereign immunity.
367. Id. at 357.
368. See Schillinger v. United States, 155 U.S. 163,166 (1894) ("Beyond the letter of such consent [to be sued] the courts may not go, no matter how beneficial they may deem, or in fact might be, their possession of a larger jurisdiction over the liabilities of the government.");
369. Price v. United States, 174 U.S. 373, 376 (1899) (finding that the government's "liability in suit cannot be extended beyond the plain language of the statute authorizing it");
370. E. Transp. Co. v. United States, 272 U.S. 675, 686 (1927) ("The sovereignty of the United States raises a presumption against its suability, unless it is clearly shown; nor should a court enlarge its liability to suit conferred beyond what the language requires.").
371. See Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909) (holding that interpreting a state statute to relinquish the state's property rights in a manner that essentially waived the state's sovereign immunity was warranted only in the face of "the most express language of overwhelming implication from the text" to indicate that the state intended to accomplish that result);
372. Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944) (asserting that a state statute must contain "a clear declaration of the state's intention to submit [to being sued] to other courts than those of its own creation");
373. Cooper S.S. Co. v. Michigan, 194 F.2d 465, 468 (6th Cir. 1952) (claiming that "a strict rule of construction is applicable" in determining whether a state statute waives the state's immunity from suit in a particular court).
374. 191 See Employees of Dep't of Health &
375. Welfare of Mo. v. Dep't of Pub. Health & Welfare of Mo., 411 U.S. 279, 285 (1973) (refusing to infer that a federal statute authorized suits against states where the statute's text and legislative history were silent on the point);
376. Edelman v. Jordan, 415 U.S. 651, 674 (1974) (holding that a federal statute authorizing "suits against a general class of defendants" did not authorize suits against states);
377. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984) (holding that court will not interpret a statute to abrogate a state's sovereign immunity absent "unequivocal expression" of congressional intent to accomplish that result);
378. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985) ("[I]t is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides the guarantees of the Eleventh Amendment.");
379. cf. Thebo v. Choctaw Tribe of Indians, 66 F. 372, 375-76 (8th Cir. 1895) ("The intention of congress to confer . . . jurisdiction [over the Choctaw] upon any court would have to be expressed in plain and unambiguous terms.").
380. See supra note 188.
381. Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 386 (1993).
382. Patterson v. Jenks, 27 U.S. (2 Pet.) 216, 229 (1829). Because the dispute in that case was between two private parties claiming title under Georgia, Marshall did not actually apply the canon.
383. Id.
384. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 541 (1832). The case is famous less for its invocation of the Indian canon than for the way that both the state of Georgia and President Jackson resisted the Court's disposition of the case.
385. See Amy Coney Barrett, Introduction, 83 NOTRE DAME L. REV. 1147, 1154-55 (2008).
386. Unlike Justice M'Lean's opinion, Marshall's opinion contains only a short and relatively oblique discussion of the Indian canon. Worcester, 31 U.S. (6 Pet.) at 552-53 (construing treaty language from the perspective of "the Indians, who could not write, and most probably could not read, who certainly were not critical judges of our language");
387. see also Frickey, supra note 193, at 402 (commenting that Marshall "found some reason to work hard to counter the ordinary textual meaning of the fourth article" where "the principles or motivations for doing so are not evident in his discussion of the article").
388. Worcester, 31 U.S. (6 Pet.) at 582 (M'Lean, J., concurring).
389. In re Kansas Indians, 72 U.S. (5 Wall.) 737, 760 (1866).
390. Choctaw Nation v. United States, 119 U.S. 1, 27-28 (1886);
391. Jones v. Meehan, 175 U.S. 1, 11 (1899). Both of these cases invoked the canon in the context of treaty construction.
392. Conway v. United States, 149 F. 261, 265-266 (C.C.D. Neb. 1907).
393. Choate v. Trapp, 224 U.S. 665, 675 (1912).
394. Frickey, supra note 193, at 406-408
395. Id. at 421n.164.
396. Conway, 149 F. at 265.
397. Choate, 224 U.S. at 675.
398. Frickey has made powerful arguments as to why the "difference in form should not.. . substantially alter judicial methodology," Frickey, supra note 193, at 421-22, including the argument that the canon can be understood as an outgrowth of the "sovereign-to-sovereign, structural relationship" between Indian nations and the United States.
399. Id.
400. So understood, the canon might be rationalized with reference to the Constitution rather than to a contract analogy.
401. See infra Part IV.C.
402. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 443 (1821).
403. Id. at 447.
404. Id. at 443.
405. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
406. Early cases confronting preemption analyzed the issue without discussing any special interpretive rule. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 220-221 (1824) (finding preemption without discussion of presumption);
407. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 138-39 (1837) (finding no preemption without discussion of presumption);
408. id. at 145-46 (Thompson, J., concurring). Notably, I found no discussion of any canon applicable to questions of preemption in nineteenth century legal treatises. The canon does seem to resemble, however, the canon historically applied when a statute appears to conflict with one passed earlier by the same legislature. In that circumstance, courts applied a presumption against repeal of the earlier statute. See, e.g., DWARRIS, supra note 139, at 54-55 & n.4. Analogously, when Congress enacts a statute that arguably displaces a state's preexisting regulatory scheme, the presumption against preemption might be understood as a presumption against supersession or repeal of that preexisting scheme. This canon disfavoring implied repeal strongly resembles the concept of field preemption in federalstate relations.
409. See ENDLICH, supra note 88, § 241, at 320-21 ("[I]n order to constitute a repeal of a statute by implication, such later act must not only refer to the same subject, and also have the same object in view as the earlier, but it must cover the whole subject matter of the same.");
410. cf. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 232 (2000) (arguing that the presumption against preemption derives from the presumption against implied repeals;
411. the Supremacy Clause functions as a non obstante provision, which, under that classic approach, instructed courts to set aside the presumption).
412. Sinnot v. Davenport, 63 U.S. (22 How.) 227, 242-243 (1859).
413. See, e.g., Reid v. Colorado, 187 U.S. 137, 148 (1902). The Court's modern cases also apply the presumption to construe even express preemption provisions narrowly.
414. See, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 523 (1992). This application of the presumption is controversial. See supra note 56.
415. See, e.g.. Bond v. Jay, 11 U.S. (7 Cranch) 350, 353 (1813) ("It is so unusual for a legislature to employ itself in framing rales which are to operate only on contracts made without their jurisdiction, between persons residing without their jurisdiction, that Courts can never be justified in putting such a construction on their words if they admit of any other interpretation which is rational and not too much strained."). The canon does not appear to have been widely applied by early nineteenth century courts. It is, however, recognized by modern courts.
416. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)
417. ("[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)));
418. see also Curtis A. Bradley, Territorial Intellectual Property Rights in an Age of Globalism, 37 VA. J. INT'L L. 505, 513-516 (1997);
419. William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 BERKELEY J. INT'L L. 85, 92-93 (1998).
420. United States v. Vowell & M'Clean, 9 U.S. (5 Cranch) 368, 372 (1810).
421. Ross v. Doe, 26 U.S. (1 Pet.) 655, 667 (1828);
422. Fisher v. Consequa, 9 F. Cas. 120, 121 (Washington, Circuit Justice, CCD. Pa. 1809) (No.4816);
423. Dougherty v. Edmiston, 7 F. Cas. 962, 962 (Todd, Circuit Justice, CCD. Tenn. 1812) (No.4025);
424. Whittemore v. Cutter, 29 F. Cas. 1120, 1120 (Story, Circuit Justice, CCD. Mass. 1813) (No.17, 600).
425. It is worth noting the occasions on which courts identified the plain language of a statute as a limit to the canon's application. See, e.g.. Denn v. Reid, 35 U.S. (10 Pet.) 524, 527 (1836);
426. Lodge v. Lodge, 15 F. Cas. 781, 781 (Story, Circuit Justice, CCD. Mass. 1829).
427. See, e.g., Brown v. Barry, 3 U.S. (3 Dall.) 365, 367 (1797) (maintaining that a Virginia statute regarding the effect of a repealing act on the act first repealed, "being in derogation of the common law, is to be taken strictly");
428. Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 623 (1812) (refusing to read a Virginia statute to abolish the common law "inquest of office" requirement because "the common law ... ought not to be deemed to be repealed, unless the language of a statute be clear and explicit for this purpose");
429. cf. Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 657-61 (1834) (refusing counsel's argument that the canon should apply to the construction of the Copyright Act because the majority thought there was no federal common law of copyright). While federal courts did not apply the canon to the construction of federal statutes, they did apply it to measure compliance with federal statutes.
430. See, e.g., Bell v. Morrison, 26 U.S. (1 Pet.) 351, 355 (1828) ("The authority to take testimony in [the manner permitted by the Judiciary Act of 1789], being in derogation of the rules of the common law, has always been construed strictly; and, therefore, it is necessary to establish, that all the requisites of the law have been complied with, before such testimony is admissible.");
431. Jones v. Neale, 13 F. Cas. 995, 995-96 (C.C.D.N.C. 1796) (No. 7483) (refusing to admit testimony taken by deposition de bene esse, as permitted by the Judiciary Act of 1789, unless all of the requirements of the act were
432. See Eskridge, supra note 2, at 1100 (asserting that his study of early interpretive practice revealed "no thinker questioning the canons as a methodology").
433. In addition to the cases described in each section of this Part, see, for example, Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 661-662 (1829) ("Every technical rule, as to the construction or force of particular terms, must yield to the clear expression of the paramount will of the legislature.").
434. See Scalia, supra note 30, at 582-583
435. Id.
436. Recall too that in addition to justifying lenity on grounds of fairness to the accused, federal courts described the canon as a check upon themselves insofar as it prevented them from expanding penal statutes through equitable interpretation. See supra notes 102-103 and accompanying text. To the extent that federal courts applied the canon to this end, they applied it to reinforce, rather than undermine, their role as faithful agents.
437. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (emphasis added);
438. see also Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801).
439. Soc'y for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 769 (Story, Circuit Justice, CCD.N.H. 1814) (No.13, 156) (emphasis added).
440. United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (emphasis added).
441. United States v. Heth, 7 U.S. (3 Cranch) 399, 414 (1806) (Cushing, J.) (emphasis added).
442. See supra Part U.A.5.
443. See supra Part II. A. 6.
444. For that matter, the fact that there were relatively few federal statutes - and that federal courts possessed no general federal question jurisdiction - means that the overall number of statutory interpretation decisions in the early federal courts is low. It was not until what Guido Calabresi describes as the late-nineteenth century "orgy of statute making" that federal courts more fully entered the business of interpreting statutes. CALABRESI, supra note 10, at 86. The 1875 grant of general federal question jurisdiction surely also contributed to this development.
445. See supra note 120 and accompanying text.
446. See supra notes 151-154 and accompanying text.
447. See supra notes 163-164 and accompanying text.
448. See supra Part II. A. 5.
449. Cf. Yoo, supra note 16, at 1616-1618 (arguing that Chief Justice Marshall often invoked canons as a means of serving legislative intent, and that such invocations reflect his commitment to legislative supremacy).
450. Manning explains: Modem textualists ... do not, and could not, maintain that the faithful agent theory historically embraced all of the specific premises of modern textualism. Rather, textualism is premised on the idea that the faithful agent theory represents a deeply rooted general principle of judicial fidelity to legislative commands, and that modern insights about the legislative process suggest that textualism offers a superior means of implementing that theory.
451. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1653 n.28 (2001).
452. See supra notes 5-6 and accompanying text.
453. See supra Part I.B.2.
454. See supra note 202 and accompanying text.
455. See supra notes 126-29 and accompanying text (Charming Betsy);
456. notes 147-149 and accompanying text (avoidance);
457. note 165 and accompanying text (retroactivity);
458. note 186 and accompanying text (clear statement sovereignty rules).
459. See supra Part I.B.2.
460. See supra Part I. B.
461. See supra notes 126-129 and accompanying text.
462. See supra note 166 and accompanying text.
463. See supra notes 183-186 and accompanying text.
464. Manning, supra note 2, at 125 (quoting Scalia, supra note 30, at 583).
465. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991);
466. see also Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979) ("[I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar with... unusually important precedents... and expected its enactment to be interpreted in conformity with them.").
467. See Manning, supra note 2, at 113 ("Using such extra-textual conventions, provided that they are firmly established, does not offend textualist premises. . . . Interpreters must apply the same set of assumptions that any 'reasonably diligent lawyer' would bring to a statute in context." (footnotes omitted)).
468. For a study suggesting that legislative drafters rely less on rules of statutory interpretation than judges commonly assume, see Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 11 N.Y.U. L. REV. 575, 583-605 (2002).
469. Even though this Article does not explore the empirical question, the cases suggest that textualists may have overestimated the degree to which at least some of the background assumptions they read into statutes are entrenched. For example, textualists have singled out the existence of equitable exceptions as a background assumption of every statute of limitations. Manning, supra note 5, at 2465-67. Yet historically, the legitimacy of such exceptions was disputed. See, e.g., SEDGWICK, supra note 100, at 277;
470. see also Sherwood v. Sutton, 21 F. Cas. 1303, 1307-08 (Story, Circuit Justice, CCD.N.H. 1828) (No.12, 782) (finding the weight of authority in favor of tolling the statute of limitations for fraudulent concealment, but acknowledging that American authorities were not entirely in accord on the question). DeSloovere's collection of statutory interpretation cases includes several state cases rejecting the notion that courts have the authority to create equitable exceptions to statutes of limitation.
471. FREDERICK JOSEPH DESLOOVERE, CASES ON THE INTERPRETATION OF STATUTES 496-502 (1931);
472. see also, e.g., Reynolds v. Hennessy, 23 A. 639, 640 (R.I. 1891) ("The question whether the fraudulent concealment of the existence of a cause of action will hinder the operation of the statute of limitations is one which has been much discussed, and upon which there has been a radical difference of opinion."). If the availability of an equitable defense like fraudulent concealment was unsettled as late as the end of the nineteenth century, it is at least questionable whether the availability of that defense is an unstated premise of every limitation statute enacted today.
473. See Manning, supra note 5, at 2466 ("[M]odern textualists unflinchingly rely on legal conventions that instruct courts, in recurrent circumstances, to supplement the bare text with established qualifications designed to advance certain substantive policies.").
474. See id. at 2467-2468
475. See Manning, supra note 2, at 125 ("And, to the extent that either the canon of avoidance or any particular clear statement rule is well settled, its application would perhaps follow from the textualists' practice of reading statutes in light of established background conventions.").
476. Id. at 113 ("In a developed legal system, this premise gives judges a way to supply many terms that, in a nascent system, might owe their existence to the equity of the statute. In a new legal system, for example, interpreters might rely on the equity of the statute to develop defenses to otherwise unqualified criminal or tort statutes. Modem legislatures however, pass such statutes against deeply embedded 'norms of interpretation and defense,' which frame the social understanding of such statutes, just as rales of grammar and diction do." (quoting Frank H. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 HARV. L. REV. 1913, 1914 (1999))).
477. This view of substantive canons is implicit in Justice Scalia's explanation of lenity as a canon justified only by its sheer antiquity. See Scalia, supra note 30, at 583 (arguing that canons like lenity are illegitimate, but claiming that "[o]nce they have been indulged, they acquire a sort of prescriptive validity, since the legislature presumably has them in mind when it chooses its language - as would be the case, for example, if the Supreme Court were to announce and regularly act upon the proposition that 'is' shall be interpreted to mean 'is not'"); see also Manning, supra note 5, at 2475 (characterizing many of the currently existing "background norms" as "hav[ing] been singled out based on the accident of prior judicial developments").
478. Scalia, supra note 30, at 583.
479. Manning, supra note 5, at 2474.
480. This criticism would not hold for background assumptions that pre-date the founding. For example, if, by virtue of English practice, courts understood general statutory language to exclude the sovereign, this understanding was a background assumption of our legal system from the beginning even if it began as a substantive canon in the English system.
481. 441 U.S. 677 (1979).
482. Id. at 698-699 (citing Cort v. Ash, 422 U.S. 66 (1975));
483. see also Manning, supra note 5, at 2474 n.318 (expressing approval of Cannon's approach);
484. cf. Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (Scalia, J.) (refusing to apply pre-Cort approach to even a statute passed when that approach prevailed).
485. U.S. CONST, art. III, §1; cf. Eskridge, supra note 2, at 1030;
486. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 652 n.308 (1995) ("[C]anons of construction of any type constitutional or otherwise - can be justified in separation of powers terms as inherent or ancillary aspects of a court's interpretive and lawmaking power under Article III.").
487. See supra Part I. A.
488. This argument assumes that the canon is properly treated as substantive. See supra notes 46-48 and accompanying text.
489. See Manning, supra note 5, at 2436.
490. Id. at 2437.
491. See Public Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 451, 467 (1989) (interpreting the Federal Advisory Committee Act to exclude the ABA even though the ABA satisfied the statute's definition of a '"group . . . utilized by one or more agencies in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government'" (quoting Federal Advisory Committee Act, 5 U.S.C. App. §3(2) (1972)));
492. Church of the Holy Trinity v. United States, 143 U.S. 457, 458, 472 (1892) (interpreting a statute to exclude ministers from the category of those who '"perform labor or service'" (quoting Act of Feb. 26, 1885, ch. 364, 23 Stat. 332)); Manning, supra note 5 at 2426-27 & nn. 153-154 (identifying the political costs Congress would have incurred by explicitly excluding ministers from the statute);
493. id. at 2437 n.184 (criticizing Public Citizen on this ground).
494. See United States v. Herron, 87 U.S. 251, 253, 263-64 (1873) (holding that a debt due the United States is not discharged by a certificate of bankruptcy even though the Bankruptcy Act provided that such a certificate discharged the bankrupt "from all debts, claims, liability, and demands, which were or might have been proved against his estate in bankruptcy"); supra note 265.
495. Again, this critique assumes that these exceptions are properly treated as substantive. See supra notes 47-51 and accompanying text.
496. For a brief description of the process considerations that drive textualism, see supra notes 5-6 and accompanying text.
497. Manning, supra note 5, at 2409.
498. NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 507 (1979) (emphasis added);
499. see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988);
500. Jean v. Nelson, 472 U.S. 846, 854 (1985).
501. Weinberger v. Rossi, 456 U.S. 25, 32 (1982).
502. Chapman v. United States, 500 U.S. 453, 463 (1991).
503. See, e.g., Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) ("The foregoing considerations would lead in case of doubt to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power.");
504. Bond v. Jay, 11 U.S. (7 Cranch) 350, 353 (1813) (Marshall, J.) ("It is so unusual for a legislature to employ itself in framing rales which are to operate only on contracts made without their jurisdiction, between persons residing without their jurisdiction, that Courts can never be justified in putting such a construction on their words if they admit of any other interpretation which is rational and not too much strained." (emphasis added));
505. United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801) (asserting that a clearly retroactive law must control);
506. see also, e.g., Choate v. Trapp, 224 U.S. 665, 675 (1912) (asserting that "doubtful expressions" are to be resolved in favor of the Indians).
507. See, e.g., INS v. St. Cyr, 533 U.S. 289, 333-334 (2001) (Scalia, J., dissenting) (asserting that "clear statement [of congressional intent to strip habeas jurisdiction] has never meant the kind of magic words demanded by the Court today");
508. Dellmuth v. Muth, 491 U.S. 223, 239 (1989) (Brennan, J., dissenting) (arguing that "the Court in the Eleventh Amendment context insists on setting up ever-tighter drafting regulations that Congress must have followed ... in order to abrogate immunity");
509. Library of Congress v. Shaw, 478 U.S. 310,327 (1986) (Brennan, J., dissenting) (arguing that the majority's approach requires Congress to use a "talismanic formula" to waive sovereign immunity for interest on attorney's fees);
510. Eskridge & Frickey, supra note 24, at 617 (criticizing Japan Whaling Assoc, v. Am. Cetacean Soc'y, 478 U.S. 221 (1986), as a case "transform[ing] the ... rule permitting Congress to abrogate traditional presidential powers only through a clear statement in the statutory text into a super-strong clear statement rale requiring the statutory clear statement to target the specific issue unmistakably"). Characterization of a canon's application as a "magic words" requirement is always pejorative; the Court itself disclaims the authority to so discipline Congress.
511. See, e.g., Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 112 (1992) (Kennedy, J., concurring) ("[W]e have never required any particular magic words in our express pre-emption cases.");
512. Carlson v. Green, 446 U.S. 14, 19 n.5 (1980) (denying that its approach requires Congress to use "magic words" to render a statutory remedy exclusive of a Bivens action).
513. See, e.g.. United States v. Nordic Vill., Inc., 503 U.S. 30 (1992) (applying rule requiring clear waivers of federal sovereign immunity when the statute "is susceptible of at least two interpretations that do not authorize monetary relief);
514. Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 & n.4 (1991) (refusing to interpret general jurisdictional grant as abrogating the state's sovereign immunity from suit in federal court on grounds that language authorizing federal courts to hear "all civil actions" did not abrogate all defenses to such actions);
515. Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (applying clear statement rule where the Age Discrimination in Employment Act left room to question whether it reached state judges).
516. Indeed, the Court itself sometimes phrases these canons as clear statement rales. See, e.g., NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 507 (1979) (holding that the Court would adopt any other plausible interpretation of a statute "in the absence of a clear expression of Congress' intent" to provoke consideration of "difficult and sensitive" First Amendment questions);
517. Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 312-13 (1970) (Harlan, J., dissenting) (refusing to interpret a statute "to override the well-settled principle [of customary international law] that the law of the country whose flag a ship flies governs shipboard transactions, absent some 'clear expression' from Congress to the contrary");
518. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21- 22 (1963) ("[F]or us to sanction the exercise of local sovereignty under such conditions in this 'delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed.'"
519. (quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147 (1957)));
520. see also Clark v. Martinez, 543 U.S. 371, 397 (2005) (Thomas, J., dissenting) ("[T]he rale of lenity is a constitutionally based clear statement rule.").
521. John F. Manning, Legal Realism and the Canons' Revival, 5 GREEN BAG 2d 283, 292 n.42 (2002);
522. see also Manning, supra note 235, at 1655 ("In the realm of constitutional values, moreover, many textualists will accept a less natural (though textually plausible) interpretation of a statute in order to avoid a conflict with serious constitutional questions or, for that matter, with the policies underlying an array of constitutionally inspired clear statement rules.").
523. See supra notes 57-67 and accompanying text.
524. See Manning, supra note 5, at 2433;
525. supra notes 16-22 and accompanying text.
526. Manning, supra note 5, at 2471.
527. See Manning, supra note 2, at 125 ("In any case, when judges promote constitutional values by shading statutory meaning (within a range that the statutory language will bear), their action surely has a firmer basis than the equity of the statute, which draws upon more open-ended conceptions of external moral principles.");
528. Nagle, supra note 51, at 808-809 (asserting that federal courts are more justified in applying clear statement rales to promote constitutional, as opposed to extraconstirutional, values).
529. Cf. Manning, supra note 5, at 2472 ("[I]f legislators can realistically evaluate legislative bargains ex ante only in terms of a statute's social meaning ... then the absurdity doctrine disturbs the bargain struck through the constitutionally mandated legislative process."). To be sure, if the Court puts Congress on notice that it will apply a specific extraconstitutional canon - like, for example, the presumption against retroactivity legislators could anticipate that canon's effect on future applications of the statute. Even if those canons are more determinate, however, the fact that they are not grounded in the Constitution limits the ability of the judiciary to rely upon them to deviate from a statute's most natural meaning for the reasons described in the remainder of this Section.
530. Cf. Young, supra note 49, at 1594 (arguing that the traditional way of thinking about judicial review as an all-or-nothing proposition overlooks the middle ground, which Young calls "the resistance norm").
531. RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION (2001);
532. see also Richard H. Fallon, Jr., The Supreme Court 1996 Term: Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 61 (1997). Other scholars have advocated similar views of constitutional decision-making.
533. See, e.g., KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING 1-19 (1999) (distinguishing between constitutional interpretation and constitutional construction in the political realm);
534. Mitchell Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 36 (2004) (distinguishing between "constitutional meanings" and "constitutional rales");
535. Henry P. Monaghan, The Supreme Court 1974 Term: Foreword: Constitutional Common Law, 89 HARV. L. REV. 1, 3 (1975) (distinguishing between judicial decisions actually interpreting the demands of the Constitution and the rales of "constitutional common law" that "draw[] their inspiration and authority from, but [are] not required by, various constitutional provisions");
536. Kermit Roosevelt III, Constitutional Calcification: How the Law Becomes What the Court Does, 91 VA. L. REV. 1649, 1655-58 (2005) (describing the "decision rales" model of constitutional law).
537. FALLON, supra note 284, at 43.
538. Fallon, supra note 284, at 57. Fallon identifies the "rational basis" test under the Equal Protection Clause, the "actual malice" standard under the First Amendment, and the four-part test for evaluating First Amendment protection for commercial advertising as examples of implementing doctrine. FALLON, supra note 284, at 5.
539. FALLON, supra note 284, at 39.
540. Fallon, supra note 284, at 60.
541. Id. at 64 ("[S]ome constitutional tests reflect an implicit judgment that it would be too costly or unworkable in practice for courts to enforce all constitutional norms to 'their full conceptual limits.'" (citing Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1221 ( 1978))).
542. Fallon points out that "perhaps more than any other constitutional doctrine, this one recognizes explicitly that a gap can exist between the meaning of constitutional guarantees, on the one hand, and judicially enforceable rights, on the other." Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274, 1276(2006).
543. FALLON, supra note 284, at 6.
544. See Dickerson v. United States, 530 U.S. 428,437 (2000);
545. FALLON, supra note 284, at 6;
546. Berman, supra note 284, at 19-29;
547. Monaghan, supra note 284, at 20.
548. Note that there are different views about whether Congress can override such doctrines. Compare Monaghan, supra note 284, at 3 (describing "constitutional common law" as "subject to amendment, modification, and even reversal by Congress"), with Berman, supra note 284, at 101-05 (arguing that such doctrines can be beyond Congress's reach), and Rosenkranz, supra note 284, at 2156 (arguing that there are limits to Congress's authority to modify or overrule constitutionally inspired substantive canons).
549. Cf. Monaghan, supra note 284, at 3.
550. William N. Eskridge, Jr. & Philip Frickey, Clear Statement Rules as QuasiConstitutional Lawmaking, 45 VAND. L. REV. 593 (1992);
551. see also Eskridge & Frickey, supra note 24, at 597, 631-633 (characterizing many constitutionally inspired canons as performing this function).
552. Eskridge & Frickey, supra note 24, at 632-633
553. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954);
554. see also Eskridge & Frickey, supra note 24, at 630-631
555. For example, Eskridge and Frickey observe that the Court invigorated federalism clear-statement rules "during a period in which the Court was abandoning any role in enforcing federalism values through constitutional interpretation." See Eskridge & Frickey, supra note 24, at 619. In the case of federalism values, underenforcement resulted from the Court's determination that it could not articulate judicially manageable standards to enforce guarantees like the Tenth Amendment and the Commerce Clause. Id. at 633.
556. See Frickey, supra note 47, at 401 (arguing that the Court did just that during the McCarthy era).
557. See Eskridge & Frickey, supra note 24, at 631 ("[S]uper-strong clear statement rales . . . provide significant protection for constitutional norms, because they raise the costs of statutory provisions invading such norms; and ultimately such rales may even be democracy-enhancing by focusing the political process on the values enshrined in the Constitution."). But see Berman, supra note 284, at 43 n.140 (arguing, in the context of judicial review, that underenforcing doctrines are less democratic than fully enforcing doctrines to the extent that they permit state actors to override the supermajority protections of the Constitution).
558. As Eskridge and Frickey observe, "judicial restraint at the constitutional level" does not preclude "judicial activism at the interpretive level." Eskridge & Frickey, supra note 24, at 621. They charge the Rehnquist Court with engaging in this sort of activism. Id. at 637;
559. see also Berman, supra note 284, at 40-43 fig.2 (pointing out that norms can be simultaneously under- and overenforced).
560. Even though the content of a canon does not purport to mimic the hard constitutional test that the court would have applied in an exercise of judicial review, the application of a canon does sometimes represent a conscious judicial choice to use interpretation to avoid invalidation. That is true of the old "unconstitutionality" version of the avoidance canon. When the most natural reading of a statute would render it unconstitutional, the court would adopt any other plausible interpretation instead. In doing so, it exchanged a hard for a soft limit on Congress. Note, however, that the court's choice to do so in no way depended on its assessment that the underlying constitutional value was underenforced.
561. That is not to say that they would never overlap. For example, the "doubts" version of the avoidance canon may sometimes avoid constitutional interpretations and sometimes avoid unconstitutional ones, thereby functioning as an overenforcing doctrine in some cases but not others. Miranda reflects the same overlap in the context of judicial review: it is widely recognized to be a prophylactic doctrine, not because it always invalidates action that would otherwise be constitutional, but because it sometimes, perhaps often, captures such conduct.
562. See supra note 298 and accompanying text; see also Nagle, supra note 51, at 812 (characterizing the Tenth Amendment's federalism norm as underenforced).
563. Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989)
564. (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234,242 (1985)). Note that Justice Scalia both joined Justice Kennedy's opinion for the Court and subsequently quoted this language approvingly in Blatchford.
565. Blatchford v. Native Village of Noatak, 501 U.S. 775, 786 (1991) (quoting Dellmuth, 491 U.S. at 227-28).
566. Dellmuth, 491 U.S. at 227.
567. Some commend that result as a valuable means of selecting important norms for overprotection. See, e.g., Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945,1966-69 (1997);
568. Young, supra note 49, at 1594. Others condemn it as violative of legislative supremacy. See, e.g., Kelley, supra note 68, at 846-60;
569. Schauer, supra note 32, at 92-95.
570. See, e.g.. The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 145-46 (1812) (applying Charming Betsy to honor customary international law principle that "national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction," while simultaneously acknowledging that "[w]ithout doubt, the sovereign of the place is capable of destroying" this principle).
571. See South Dakota v. Bourland, 508 U.S. 679, 686-687 (1993) (Thomas, J.) ("Congress has the power to abrogate Indian treaty rights, though we usually insist that it make clear its intent to do so.").
572. See, e.g., Dickerson v. United States, 530 U.S. 428, 457-459 (1999) (Scalia, J., dissenting) (acknowledging that the Court has adopted doctrinal tests to implement, inter alia, the Takings Clause, the Confrontation Clause, and the First Amendment, but arguing that such rules are designed to enforce constitutional limits rather than set prophylactic protections).
573. Id. at 432 (majority opinion) (holding that Congress may not legislatively overrule Miranda v. Arizona, 384 U.S. 436 (1966));
574. see also Berman, supra note 284, at 25-32 (describing Justice Scalia's Dickerson dissent as a notable rejection of the view that courts may enforce the Constitution through the adoption of prophylactic rales);
575. Roosevelt, supra note 284, at 1669-1670
576. Dickerson, 530 U.S. at 446 (Scalia, J., dissenting);
577. see also id. ("That is an immense and frightening antidemocratic power, and it does not exist.").
578. See JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 105 (1997).
579. See William Eskridge, Overriding Supreme Court Statutory Interpretations, 101 YALE L.J. 331, 338 (1991) (collecting data on congressional overrides).
580. Nagle, supra note 51, at 821-822 ("[T]he admittedly imperfect ability to overcome a clear statement rale presents an alternative that is not available to Congress when the Court strikes down a statute as unconstitutional.").
581. Cf. Young, supra note 49, at 1608-1609 (arguing that clear statement rales "make clear to all participants in the political process that constitutional values are at stake, by highlighting the aspects of legislation that implicate those values"; in addition, they "add to the hurdles that any legislation must pass, increasing the political costs that proponents must incur in order to achieve their objectives").
582. See supra Part II. A.
583. See Roosevelt, supra note 284, at 1672 (pointing out that no justice has defended the practice of over- or underenforcing the Constitution through decision rules that deviate from the Constitution's provisions).
584. Treating the legitimacy of substantive canons as settled by stare decisis is different from treating any individual canon as a background assumption of the language employed by the interpretive community of lawyers and lawmakers. The "background assumption" argument evades the constitutional difficulty by treating the substantive canon as effectively linguistic. See supra Part III. The argument from stare decisis, by contrast, recognizes many canons as substantive and offers a prudential reason for tolerating them notwithstanding the constitutional difficulty they pose. Moreover, the argument I develop here is that stare decisis counsels in favor of interpreting "the judicial Power" broadly enough to encompass a limited authority to deploy substantive canons, not that longstanding acceptance is a reason for accepting any particular canon.
585. See Barry Friedman, When Rights Encounter Reality: Enforcing Federal Remedies, 65 S. CAL. L. REV. 735, 780 (1992) (emphasizing the importance of interbranch dialogue). The ways in which overprotecting canons interfere with the majority will, however, are good reasons for siding with those who argue that Congress has the power to overrule such canons when it disagrees with the Court's assessment that a particular constitutional value is worth overprotecting. See supra note 293.
586. I say "assume," for lenity can be understood to protect other policies as well, including the due process value of notice. See supra note 40. For a discussion of the difficulty of deciding whether a canon protects constitutional or extraconstitutional values, see infra note 325 and accompanying text.
587. See U.S. v. Santos, 128 S. Ct. 2020, 2025 (2008).
588. See supra notes 30-67 and accompanying text. The Court could choose to protect constitutional values through presumptions rather than clear statement rules, and that too would be consistent with faithful agency.
589. Note that the canon counseling narrow construction of statutes in derogation of the common law is objectionable not only because it conflicts with the structural principles that otherwise constrain statutory interpretation, but also because it cuts against the principle that legislation is hierarchically superior to common law, rather than the other way around. Canons rooted in the Constitution, by contrast, push the text to accommodate values embodied in law that is hierarchically superior to legislation.
590. See supra notes 40, 102, 103 and accompanying text. Justice Thomas has suggested that lenity may have more bite if it is constitutionally based. See Clark v. Martinez, 543 U.S. 371, 397-98 (2005) (Thomas, J., dissenting) (pointing out that lenity might function as a "constitutionally based clear statement rule" or a "nonconstitutionally based presumption about the interpretation of criminal statutes" (emphasis added)).
591. See supra Part I. C.
592. See supra Part I. B.
593. The limitation that the avoidance canon be applied to avoid serious constitutional questions can be understood to respect this specificity requirement. Cf. Marozsan v. United States, 852 F.2d 1469, 1495 (7th Cir. 1988) (Easterbrook, J., dissenting) ("Construction to avoid unconstitutionality or a serious question, must be distinguished from revising statutes to avoid any questions at all. What with the proliferation of constitutional 'questions,' courts could do anything they pleased." (citations omitted)).
594. Cf. Manning, supra note 5, at 2479-2481
595. See supra Part I. C.
596. Similarly, a canon designed to protect the constitutional separation of powers - a function that can be attributed to a host of canons - is probably stated at too great a level of generality to justify departures from a text's most natural meaning. See supra note 43 and accompanying text (describing how all canons can be conceived of as "buffering devices" between the courts and Congress). By contrast, a canon designed to protect a particular allocation of power - like the allocation of foreign affairs authority to the political branches - may be concrete enough to put Congress on notice of the way this specific constitutional concern could affect the interpretation of a statute. For a discussion of why putting Congress on notice that it will enforce a specific extraconstitutional value does not justify departure from a text's most natural interpretation, see supra note 282.
597. The absurdity doctrine is objectionable on the ground that it permits outright alterations to the text of a statute. See supra notes 17-21 and accompanying text. Even if, however, the absurdity doctrine permitted a court to forgo a statute's most natural meaning in favor of a less plausible one, it would fail for the reasons discussed above.
598. Manning, supra note 5, at 2391.
599. Id. at 2446-2447 (arguing that insofar as "the absurdity doctrine permits judges to displace legislation that would easily survive rationality review, that doctrine threatens to disturb the careful balance between legislative and judicial power struck by the modem rational basis test").
600. See id. at 2433. Some interpret the post-New Deal cases as underenforcing the Due Process and Equal Protection Clauses rather than enforcing those clauses to their full conceptual limits. See, e.g., Sager, supra note 289, at 1216-1218 Even if rationality review represents a prudential judgment rather than an assessment of actual constitutional constraints upon the judicial power, overenforcement of the rationality requirement undercuts that prudential calculation.
601. Again, this is not to say that it is illegitimate for a court to rely on its own sense of reasonableness in choosing between equally plausible interpretations of a statute. See supra note 324 and accompanying text. It is only to say that a court would not be justified in adopting a less plausible (but bearable) interpretation of a statute in ostensible service of due process and equal protection.
602. See, e.g., Eskridge & Frickey, supra note 24, at 624 ("The supremacy clause is an exception to our basic system of federalism, rather than a foundational premise upon which the Constitution replaced the Articles of Confederation?");
603. see also Nelson, supra note 211, at 256 ("[T]he [Supremacy Clause] does caution against straining the meaning of a federal law to avoid a contradiction with state law.").