Mike Ramsey mentioned Charlie Capps’s new paper on substantive canons. While I haven’t read the paper yet, it reminded me of a portion of a new paper that John McGinnis and I have submitted to law journals. Here is an excerpt from the paper:
Some commentators question whether meanings generated by specific legal interpretive rules really are meanings. A common argument is based on the distinction between linguistic canons and substantive canons. Linguistic canons follow the ordinary use of the language, whereas substantive canons depart from the linguistic meaning to promote some other substantive value. As a result, these commentators view the substantive canons as departing from the meaning rather than constituting it.
But this argument mistakenly assumes that the Constitution is written in lay language rather than in the language of the law. While substantive canons depart from the lay meaning of language, they do not depart from the legal meaning of provisions. Instead, they constitute it. Those with knowledge of the law understand that their language will be interpreted in accord with these substantive canons. Therefore, the meaning of that language in the language of the law will conform to those substantive canons.
Put differently, one might identify the linguistic canon as it operates within the language of the law as the linguistic legal canon. In that event, all the canons – linguistic and substantive – will be linguistic legal canons, since lawyers conform to all of those canons when they write a document. Thus, the meaning of the document will be the legal meaning as determined by all the canons.
Of course, this argument only works if the substantive canon pre-exists the constitutional or statutory provision it is applied to. If a new canon is invented and applied to preexisting provisions, then it will not help to determine the original legal meaning of the provision.
Posted at 8:00 AM