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- Title
RETHINKING THE CANON OF CONSTITUTIONAL AVOIDANCE.
- Authors
Slocum, Brian G.
- Abstract
The canon of constitutional avoidance is controversial in part because it sanctions statutory interpretations that courts might otherwise view as impermissibly activist, which makes the features of its definition of crucial importance. Critics have rightly condemned the Court's conception of the avoidance canon, but these criticisms have largely failed to identify the canon's flaws. For instance, the Supreme Court characterizes the avoidance canon as a mere tie-breaking principle that applies only after it identifies linguistic "ambiguity," but critics maintain that the Court frequently uses the canon as justification to "rewrite laws." The "rewriting" argument is overstated. In fact, the Court's conception of ambiguity in avoidance canon cases is too narrow. Primarily, this is because the Court has failed to recognize the different ways in which a statute might be indeterminate. For instance, the Court has mistakenly maintained that implied limitations on statutory language involve "notably generous" interpretation. To the contrary, implied meanings are a normal aspect of the meaning communicated by a text, and judicial recognition of an implied term does not necessarily involve the "rewriting" of laws. Furthermore, the Court's conception of the avoidance canon fails in other respects, also not often discussed by critics. Most significantly, while the Court insists that textual ambiguity is a condition precedent to the application of the avoidance canon, the Court's determination of ambiguity is largely subjective and based on jurisprudential commitments rather than neutral linguistic principles. This Article presents a novel, interdisciplinary analysis of how the Court should reconceptualize the avoidance canon based on a more nuanced understanding of language and the function of interpretive principles. Part of the reconceptualization involves modifying the avoidance canon's ambiguity trigger to allow for a more expansive understanding of the multiple ways in which a text can be indeterminate. Instead of the Court's current narrow focus on the literal meaning of textual language, the avoidance canon should be based on a broader notion of indeterminacy viewed in light of the "communicative meaning" of a text. The avoidance canon is typically justified by normative principles regarding judicial restraint rather than as an aspect of the communicative meaning of a text. Like other substantive canons, though, it is also based on a presupposition about the clarity of congressional statutory drafting that is tied to communicative meaning. When framed in such a manner, the avoidance canon can serve as a useful tool for resolving statutory indeterminacy, particularly in cases where implied language is necessary to make a statute determinate enough to resolve the interpretive dispute. The purpose of this new understanding of the avoidance canon is not to create more situations where the canon is applied in order to select second-best interpretations. Rather, by reconsidering the foundation of the avoidance canon, the Court can make the canon more coherent as well as consistent with other important interpretive canons and principles governing language usage.
- Subjects
STATUTORY interpretation; UNITED States. Supreme Court; COURTS; JUDICIAL restraint; CONSTITUTIONS
- Publication
University of Pennsylvania Journal of Constitutional Law, 2021, Vol 23, Issue 3, p593
- ISSN
1521-2823
- Publication type
Article