This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the expense of others is inappropriate and courts need to strike a new balance m how they use canons.
Part I discusses the textualist approach to statutory interpretation and its critics. Part II examines the traditional "canons" of statutory construction and how modem textualist Judges have approached their use. Part III shows that textualist Judges often use clear-statement rules to narrow a statute's scope, especially to promote states' rights or private economic interests. Part IV suggests that textualist Judges are often less vigorous about promoting canons that favor certain kinds of individual constitutional rights. Part V demonstrates that, contrary to the initial expectations of many commentators, textualist Judges appear less likely to defer to executive agency interpretations of statutes. Part VI examines Professor Sunstein's interpretive principles, including the difficult questions of how broadly or narrowly to apply a canon and how to balance conflicting canons. This Article concludes that courts should rein in their use of clear-statement rules, but expand their use of canons that favor individual liberties or executive deference.
Mank, Bradford, "Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies" (1997). Faculty Articles and Other Publications. 142.