Proprius Effectus Legis: A New Article on Saving Substantive Canons and Presumptions

In the world of statutory interpretation, there are canons of construction, often with Latin names. Ejusdem generis. Noscitur a sociis. Etc. But some of the canons are a bit different. Rather than serving as baseline rules about grammatical meaning or some such thing, they seem to serve broader substantive public policies, e.g., the rule of lenity (that an ambiguous criminal law will be construed against application), the canon of constitutional avoidance (statutes will be construed, if possible, to avoid conflicts with the Constitution), and so forth. These have long been called “substantive” as opposed to “linguistic” canons.

It might surprise you to learn that, for more than twenty years, leading textualist scholars (including one who now sits on the Supreme Court) have waged a serious intellectual attack on the propriety of the “substantive” canons.¹ More surprising still, given the tendency for textualists to be originalists and vice versa, this attack is made despite the frank acknowledgment that many if not most of our substantive canons pre-date the Founding, were readily adopted by the earliest Federal Courts, and have been in consistent usage ever since. At a broader level, I think this tends to show that the tail is wagging the dog—as even the most prominent textualist scholars have conceded, they wish to abandon or drastically revise the substantive canons in order to bring them into conformity with “modern textualist theory,” rather than trying to craft a theory that fits historical practice. But to the point at hand, are these canons defensible?

Yes, or so I conclude in my new draft paper, Proprius Effectus Legis: Saving Substantive Canons and Presumptions Through a Presumption of Legislative and Executive Morality, just posted to SSRN. The paper will be presented as a symposium/workshop at Catholic University’s Columbus School of Law in late March, and I look forward to the comments and pushback from senior scholars reviewing the paper. But in the meantime, I’d like to share the link and provide a very brief overview of the paper.

My contention is that substantive canons and presumptions can be defended along the lines of the classical legal tradition, which admittedly departs in substantial ways from the positivist and public-choice theory presuppositions of modern textualism. (E.g., modern textualist deny either the coherence or discoverability of “collective intentions”, but the philosophical work of, say, the late John Searle or Professor Joshua Harris both offer at minimum plausible accounts of the reality of collective intentions, and the Thomistic underpinnings of Harris’ work, in my view, help us get at collective intentions about statutory meaning).

Once we have a classically rooted understanding of the nature of law, including the proprius effectus legis (or “proper effect of the law”), we can offer a defense of these canons. They are not judicial impositions of policies disconnected from the statute, as textualists contend, but are inherent components of the broader legal cosmology of the law, necessarily. The absurdity canon—which has come under rather strident attack from textualists—is not imposing vague and indefinite values from outside of the statute, but is in keeping with what the legislature has done: enacted an ordinance of reason. Congress are lawmakers not absurditymakers, so we rightfully presume that when they enact laws they will bear the nature of such. I use these kinds of principles to defend the absurdity canon, the Charming Betsy canon (the presumption that Congress does not pass statutes that violate the ius gentium, or law of nations), the anti-retroactivity canon, and, in the Executive realm, the presumption of regularity (the presumption that when executing the law, the President and his subordinates do so lawfully, with lawful purpose, and so forth).

It is a rather long read, and it is a draft I will be working out over the coming months, so buckle up. But I hope you enjoy, and, as this is a draft, I of course welcome thoughtful comments

1. Textualist unease over the substantive canons has gone through multiple iterations. As I document in the paper, it began with criticism, then moved to calls to abandon them, then accounts of repurposing them as merely “linguistic” by, well, ipse dixit, and now even to the point where the argument simply denies that there are any such substantive canons at all. See Charles F. Capps, Are There Any Substantive Canons of Interpretation? (Feb. 13, 2026) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6180143/. This latest argument received significant attention on X in the last week. I am not doing a full response here, but within the context of my paper, I think there are several problems with the thesis. First, mightn’t this just be a category error? Even accepting Professor Capps’ point that courts often frame substantive canons in terms of legislative intent, surely there is a difference between the rule of the last antecedent and the rule of lenity. Second, while I do not share textualist anxiety with collective intention (indeed, I argue there is such a thing), as Justice Barrett argued extensively as an academic, the rejection of collective intent is a fundamental thesis to both textualism and originalism in their most accepted forms. If Professor Capps wants to reject the textualist rejection of collective intent, I will be the first to celebrate it, but amongst textualists, reciting that Congress “intended” X action seems likely to not land, given three decades of insistence that there is no such thing. Third, I frame my argument around the Supreme Court’s recent pronouncement in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) that “Presumptions have their place in statutory interpretation, but only to the extent that they approximate reality.” If we tie ourselves, as the leading textualists have, to public choice theory, then we might wind up asking, “Doesn’t Congress sometimes actually intend absurdity (e.g., some absurd textual language was necessary to get the law across the finish line via some bargained-for compromise that could have had nothing to do with that language in particular)? Does Congress really intend that a criminal statute be interpreted narrowly so as to escape what they were trying to punish?” Within that framework, textualist skepticism toward substantive canons seems justifiable, or at least understandable. But, as I ask at some length in my paper, under Loper Bright, what “reality” counts for assessing canons and presumptions? Textualists and public choice theorists have, for some decades, had an answer to that question and it is one that counsels against invocation of substantive canons. And yes, as Professor Capps points out, courts couch substantive canons in terms of intent all the time. But they did the same for the Chevron canon for decades before deciding, based on public choice theory, that was wrong. My argument is that we need to reorient ourselves to the classical register, and once we do, we can honestly answer yes Congress does truly intend the things advanced by substantive canons, because Congress is a lawmaker, and those things advanced by substantive canons are in the nature of the thing Congress is making, i.e., law. In that limited sense, I agree that, at some level, the distinction between substantive and other canons breaks down, but I’d be hard pressed to deny there is no difference between punctuation and refusing to read a statute to achieve substantively absurd results.