The Textualist Basis for Substantive Canons

Thomas MacPhee*

Textualism is often described as an epistemological claim: the only way to know the law is by the meaning of its words in their full context to a reasonable interpreter at the time of their enactment. By and large, textualists all agree with that. But questions like what counts as the text’s “full context” and what makes an interpreter “reasonable” create a great deal more division. Textualists seem united on some fronts—legislative history is out, dictionaries are in—but other issues remain contentious. The use of substantive canons of construction presents one particularly pressing theoretical battlefield. Can a good textualist ever use substantive canons? If so, which ones and when?

In Part I, I will present the prima facie case for a textualist justification of substantive canons. In Section I.A, I will outline the textualist ontology of law and its implications for extratextual context. And in Section I.B, I will present Justice Barrett’s treatment of the major questions doctrine as an example of a textualist justification for a substantive canon. In doing so, I will address in more detail Eidelson and Stephenson’s critiques. Then, in Part II, I will develop upon that basis by applying arguments parallel to Justice Barrett’s to justify two other substantive canons as appropriately weighing on substantive context: the rule of lenity and the federalism canon.

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*J.D. Notre Dame Law School, 2026; B.A., Hillsdale College, 2023. Thank you to Professor A.J. Bellia for teaching me to be a textualist and for his invaluable advice and encouragement throughout the preparation of this Note. Thank you to my excellent friends and colleagues on the Notre Dame Law Review for their tireless work. Thank you to my parents, without whom none of my accomplishments would be possible. All errors are my own. All glory belongs to the Lord Jesus Christ, my savior.