Intention and the Canons of Legal Interpretation

by Stanley Fish

New York Times
July 16, 2012

Those who are still wondering why Chief Justice John G. Roberts voted as he did in NFIB v. Sebelius might find an answer (not necessarily the answer) in Antonin Scalia’s and Bryan A. Garner’s new book, Reading Law: The Interpretation of Legal Texts. One of the canons of legal interpretation the authors rehearse is the Constitutional-Doubt Canon, #38 in their taxonomy: “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.” This canon, Scalia and Garner explain, “rests upon a judicial policy of ... minimizing judicial conflicts with the legislature.” They cite and affirm as exemplary a statement by Justice John Paul Stevens: “It is our settled policy to avoid an interpretation of a federal statute that engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question.”

As everyone knows, Justice Roberts finds the Obama administration’s reliance on the commerce clause unpersuasive and would have declared the Affordable Care Act unconstitutional if it rested upon a claimed ability of Congress not only to regulate but to compel commerce. But he then saves the act by redescribing it as a tax, thereby bringing it within the ambit of congressional powers. Now, whether this “alternative interpretation” is “reasonable” can and has been debated — in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”

What is a canon? Scalia and Garner are careful to say that canons “are not ‘rules’ in any strict sense” — canons do not direct those who follow them to specific actions in the manner of rules like “no smoking” or “no pets allowed.” Rather, canons are “presumptions about what an intelligently produced text conveys.” This does not mean any intelligence, but the intelligence that accompanies, or should accompany, the production and interpretation of legal texts. The canons, the authors say, are “background principles of assumed legislative intent.” They get their sense and their rationale from the enterprise in which they function, and they might be inapplicable or out of place in another enterprise.

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