Codified Canons and the Common Law of Interpretation

Abstract

Many scholars and jurists use canons—interpretive “rules of thumb”—to draw meaning from statutes, but do not inquire whether those methods are consistent with how legislatures want their statutes to be interpreted. This paper examines the interpretive preferences of each legislature in the United States and compares those preferences with the common law canons. Because the canons are nothing more than common law, legislative enactments that repudiate or support canons should not only should be included in any conversation about the canons, but considered important and controlling. As a result, my theory of the common law of interpretation and the codified canons suggests that the prevailing interpretive toolbox should be revised and recalibrated. Some canons that are controversial in the judiciary and academy, such as recourse to legislative history, are not so controversial in the eyes of legislatures. I also suggest that other judicially well-settled canons, such as expressio unius, are in fact unsettled because legislatures reject them in their codes. Finally, I show that textualism has a discontented relationship with the positive law because textualism’s embargo on extratextual sources conflicts with widely codified legislative preferences.