Professor Joel Johnson, Legality Canons - Vanderbilt Law Review (forthcoming)

Professor Joel S. Johnson's article, Legality Canons, (SSRN) has been accepted for publication in the Vanderbilt Law Review.  The article offers a new way to understand many of the so-called substantive canons that the Supreme Court uses when interpreting statutes. The article will be published in spring 2027.

Abstract of Legality Canons:

Critics charge that “substantive canons”—interpretive tools said to import values from beyond the text—cannot be squared with textualism, an interpretive method that treats enacted text as the exclusive source of law. Yet the Justices most committed to textualism continue to apply many of these canons, including the rule of lenity, the presumptions against retroactivity and extraterritoriality, the federalism canons, and the major questions doctrine. The trouble lies more in the label than in the practice. The tools that the Court applies are better understood as legality canons—devices that authenticate an exercise of coercive government power by tracing it to a legitimate lawmaker who has authorized the rule of decision being applied. So understood, these canons are rooted in the structure of the legal order in which every statute is enacted and read. The reframing clarifies that textualism’s hypothetical reasonable reader is informed about legal context and not linguistic convention alone, which explains why so many of these canons have migrated from stage-two tiebreakers to stage-one implied limitations that help determine what a text means in the first instance. Yet the legality principle that justifies the canons also limits them, and the Court has not always observed the limit. The legality framework provides a standard for assessing when the canons are properly invoked, resulting in a more disciplined account of the canons now in use.