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Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

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 …