In law school, American lawyers are often exposed to canons of statutory interpretation. Yawn. Well, no actually. This seemingly arcane area of law is actually incredibly important for some of the biggest Constitutional and statutory decisions coming out of federal and state courts.
Canons are ways of interpreting the meaning of a statute that come from general hunches about the way that the English language works, the intentions of legislators, the US Constitution, and past case law. Not all canons apply in all cases, and judges may disagree about which canon to apply in a particular circumstance. Although there is no official list of canons, textbooks and articles have compiled some of the most commonly used canons. Because canons are often guidelines for interpretation that come from outside the Constitution, it is a reasonable question to ask about their validity.
The Rule of Lenity might be the strongest canon of all, arguably rooted in the Eighth Amendment’s prohibition on cruel and unusual punishment. Under this reasoning, it is wrong to construe the uncertain meaning of a statute against a criminal defendant, who would be punished without any way to determine the meaning of the law in advance.
Federalism canons (several related ones) also have a strong backing in the Constitution, because the Constitution imagines a tripartite federal separation of powers and a big role for the states in elections and as free standing sovereign governments, mentioned in the Tenth Amendment.
Noscitur a sociis from Latin, is also called the associated words canon. Closely associated words bear the same meanings. Similarly, ejusdem generis holds that words in a list belong to the same general class of things. Several canons deal with the “whole act” reading a statute or Constitutional provision for its overall meaning, including the meaning conveyed in headings. This often includes avoiding surplusage, reasoning that if a word is included or omitted that is done on purpose.
These interpretive canons probably make sense given the ways that people convey meaning in English (or any language). Ironically, even if the Constitution did contain more specific rules on how it is to be read and interpreted, even those rules would probably require something like canons to interpret.
Canons, or very similar concepts, are common elsewhere in Global North. Languages like German and French with extensive, highly specific vocabularies may actually be more specific at baseline than English. After all, English is an unusual creole with lots of French vocab and borrowed words atop Germanic grammar, that is always changing and not centrally regulated. As a result, it’s often up to the crowd to determine what words mean. Hang onto your old dictionaries because major dictionary companies now frequently change definitions to serve short run social priorities, essentially “grassroots lobbying” to change the meaning of words from their past meanings.
Should judges use legislative history? Superficially, this seems like a good idea. Why not look to the records of a legislature to figure out what legislators wanted a law to mean. This stance of deferring to legislative intent is often described as “judicial minimalism,” a once more common judicial philosophy that faded from prominence with the death of American judges like Supreme Court Justice Byron White and Justice Louis Brandeis. Although legislative history is widely used, it is disfavored in the US, UK, and even in France. The late US Supreme Court Justice Antonin Scalia despised legislative history, seeing it as a way for judges to make partisan political decisions based on their own desires rather than the actual meaning of the law. Scalia cautioned that legislative history is often crafted in advance by lobbyists who give legislators prepared statements to read into the record, stacking the deck for a different meaning for a law than the actual text of the statute.
Because France revived the old Roman Justinian Code as the Napoleonic Code of civil law, France is a bellwether for how civil law countries interpret the law. Except in the area of torts, almost everything in French courts is statutory, meaning judges have to do a lot of statutory interpretation. Until the 1830s, the French legislature would often weigh in with interpretive decisions, although that eventually stopped to prevent partisan decisionmaking in the courts. As in the US and UK, legislative history fell out of favor for decades, although it had resurgence in the 1970s after French legislators gutted and replaced large portions of the Napoleonic Code.
In France, judges are expected to apply a text as written unless the result would be absurd. If there is uncertainty, judges may look to the will of the legislature, and fall back on the “teleological interpretation method” if there is too little legislative history.
Taken together, widely accepted canons that continue to recur in the US courts are probably mostly sensible. However, attorneys, judges, and the general public should always pause to ask if the value of the canons holds true.
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