Canons of Construction
Presumptive rules used by courts when interpreting statutes — divided into linguistic canons (grammatical and structural) and substantive/normative canons (policy-based presumptions).
Elements / Test
Linguistic (textual) canons:
| Canon | Rule |
|---|---|
| Expressio unius | Expression of specific things implies exclusion of others not mentioned |
| Ejusdem generis | General term following specific list limited to things similar to list |
| Noscitur a sociis | Ambiguous word interpreted by its surrounding company |
| Surplusage | Every word has meaning; avoid interpretations making words redundant |
| Whole-act rule | Same term carries same meaning throughout the statute |
| Heading canon | Section headings may be used as interpretive aids (though not controlling) |
| Last antecedent | Qualifying phrase ordinarily modifies only immediately preceding item |
Substantive/normative canons:
| Canon | Rule |
|---|---|
| Rule of lenity | Ambiguous criminal statutes resolved in defendant’s favor |
| Presumption against retroactivity | Statutes not applied retroactively without clear congressional statement (Landgraf) |
| Presumption against extraterritoriality | U.S. statutes not applied abroad without clear statement (Morrison) |
| Federalism clear statement rule | Congress must speak clearly to intrude on state sovereignty (Gregory v. Ashcroft) |
| Constitutional avoidance | Prefer interpretation that avoids serious constitutional questions |
| Remedial construction | Remedial statutes construed broadly to achieve their purposes |
| Sovereign immunity | Waiver of sovereign immunity must be express and unambiguous |
| Indian canon | Ambiguities in statutes relating to Indians resolved in Indians’ favor |
Exceptions and Edge Cases
- Competing canons: Canons often point in different directions; courts have discretion in choosing which to apply (Llewellyn’s “thrust and parry” critique)
- Not binding: Canons are presumptions, not rules; they can be rebutted by strong evidence of contrary meaning
- New textualism: Uses only linguistic canons; rejects substantive canons as substantive policy choices that belong to Congress
- Purposivism: Uses canons as tools to serve statutory purpose, not as rigid constraints
Policy Rationale
Canons provide predictability and consistency; they reflect embedded background principles against which Congress is assumed to legislate. Critics argue they are manipulable and that conflicting canons give judges license to choose outcomes.
Key Cases
| Case | Rule |
|---|---|
| Gustafson v. Alloyd Co. (1995) | Noscitur a sociis — “prospectus” in § 12 read in context of surrounding statutory scheme |
| Yates v. United States (2015) | Ejusdem generis and whole-act rule applied to limit “tangible object” in Sarbanes-Oxley |
| Landgraf v. USI Film Products (1994) | Presumption against retroactivity: statute does not apply to pending cases unless Congress clearly states otherwise |