Tuesday, May 4, 2021

Few rules of construction are absolute

If you happen to encounter anyone invoking the well-known (and reasonable, so long as the use of it remains reasonable) canon of legal construction (or "interpretation") that when one thing is specifically expressed, it tends to exclude the rest, keep in mind that that rule, like most of the established rules of construction in the law, is not meant to be applied without any regard for the circumstances and whether that application makes any sense.

The aim of legal construction or interpretation is to ascertain the true meaning of whatever is being interpreted or construed, which is also the paramount (and, probably, the only absolute) rule of construction.  When a given use of "Expressio unius est exclusio alterius" does not help us to ascertain that meaning faithfully, it serves no useful purpose, and giving it a forced and unnatural application is nothing more and nothing less than an abuse of it.

The same can be said for the other established canons of construction -- that they are useful when they are used sensibly but should not be treated as if they were universal, absolute rules that are always right and always binding.  However, at the moment, I'm focusing on the one identified above: that the affirmation of one thing is the negation of all the rest.

And by "focusing" on it, I mean that I am going to let the words of Joseph Story, who was a justice of the Supreme Court of the United States, tell you how indiscriminately invoking and applying that canon is a quick, easy path to absurdity and error.

“§ 448. XIII.  Another rule of interpretation deserves consideration in regard to the constitution.  There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience.  Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another.  Lord Bacon's remark, ‘that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated,’ has been perpetually referred to, as a fine illustration.  These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition.  But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument.  Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same thing in every other case.  Both of these deductions are, or rather may be, unfounded in solid reasoning."

"Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases.  As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.  One might with just as much propriety hold, that, because congress has power ‘to declare war,’ but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that ‘no bill of attainder, or ex post facto law shall be passed’ by congress, therefore congress possess in all other cases the right to pass any laws.  The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument.  These, and these only, can properly determine the rule of construction.”