Part II

Statutory Construction

The process of statutory construction involves a search for legislative meaning made within the context of particular statutory issues that have been presented to a court for resolution. In most cases each court begins its search by seeking to answer the following question: what did the legislature mean (i.e., intend) by the enactment of this particular statute in question? How each court chooses to go about answering this relatively straightforward question depends upon many different factors, most of which (collectively) involve a reasoning process that we typically refer to as "statutory construction." This process is really a combination of many different factors including the application of various non-binding substantive "canons" (i.e., guidelines) of interpretation, literal grammar and word usage rules, and different jurisprudential philosophies as to the nature of the relationship between the judicial and legislative branches of government. The purpose of Part II of this Lesson is to provide a brief overview of this process.

Traditional "Approaches" to Statutory Construction

Over the years, the common law has recognized a number of basic principles to be applied by courts when construing the words used in any statutory enactment. Some of these principles have become so widely utilized that today they are often referred to as "rules" (typically also referred to as "canons") of statutory construction. These so-called "rules" are frequently asserted by the courts in addressing some of the most common statutory construction issues that regularly arise. Historically, individual "rules" or "canons" of statutory construction generally have been based upon one of four distinct approaches, depending upon the particular philosophical perspective of the construing court. These different approaches are:

(1) The "Mischief Rule" Approach. Under this approach the court first seeks to identify what original problem (i.e., "mischief") or deficiency in the law the statute was enacted to address, and the words of the statute itself are then construed to give effect to that particular legislature purpose. Under such an approach, whatever the original purpose of the statute may have been, its application is limited by the words actually used within the statute itself.

(2) The Equity of the Statute Approach. Under this approach, once the legisltaure's original purpose in enacting the statute has been determined, the statute is then construed (i.e., interpreted) to give effect to that purpose, regardless of the literal meaning of the actual words contained within the statute itself. Under such an approach, the purpose of the statute is paramount in the court's search for statutory meaning, with much less emphasis placed upon the actual meaning of individual words in the statute. This approach is seldom used today.

(3) The "Plain Meaning" Approach. Under this approach, the literal meaning of the words in the statute is controlling. If a particular meaning is clear and unambiguous, then the court will not look at any other sources (such as the legislative history) in construing the statute. The words clearly speak for themselves by expressing precisely what the legislature intended. Presumably, in such instances, the meaning intended by the legislature is already plain to the reader and needs no further interpretation. Therefore, it is unncessary for the court to resort to anything outside the statute itself. A number of courts today still use this approach, although not without criticisim, since any individual court desiring to reach a particular result can always simply declare the wording of a statute to be "ambiguous" and thereby resort to an examination of the legislative history (or some other outside source) in search of further clarification or meaning.

(4) The "Golden Rule" Approach. This approach simply declares that if the application of the unambiguous or actual literal meaning of a particular statute leads to an absurd or inconsistent result, then the court is free to consider other sources (including legislative history) for a meaning that would avoid an absurd result.

Although each of the traditional approaches to statutory construction discussed supra reflects its own unique perspective in determining and analyzing the intent of the legislature, most of them do apply certain uniformly recognized specific "rules" when actually interpreting the meaning of words in a statute. For purposes of this introducory Lesson, the specific "canons" of construction applied by many of these traditional approaches may generally be grouped into two basic categories of formal rules: linguistic canons and substantive canons.

"Canons" of Statutory Construction

Linguistic Canons. Linguistic, or language, canons articulate generally accepted language rules that are based upon well-recognized principles of grammar, syntex and word usage. Presumptively, these rules do not favor or advance any particular judicial policy or philosophical approach to statutory construction.

Substantive Canons. Substantive canons of interpretation reflect certain judicially articulated priorities to be applied in the construction of statutory language, derived from prior common law practice, as well as from established constitutional principles. Included among such principles are rules that avoid any statutory interpretations that would jeopardize a statute’s constitutionality, abrogate a sovereign's immunity, or otherwise disrupt the performance of some other traditional constitutionally-recognized function. See generally Brudney & Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, Center for the Study of Law and Politics, Working Paper No. 28.

Individual "Rules" of Statutory Construction*
* For the sake of brevity, this Lesson focuses primarily upon the linguistic canons, defined supra, since they are much easier to articulate and to apply. The following are among the most frequently utilized linguistic "rules" of statutory construction.

The "Whole Act" Rule. The so-called "whole act" rule is a textual canon that simply states that when construing a statute, the text of the entire statute as a whole must be considered. Thus, unless it is specifically defined to have different meanings in different parts of the same statutory enactment, the same word when used in the same statute is presumed to have the same meaning each time it is used. One corollary to this rule states that every word in a statute is presumed to have some reason for being included in the statute, and is not to be ignored as mere "surplussage." Likewise, individual statutory provisions are not to be interpreted in manners that are in derogation of or inconsistent with other provisions within the same statute.

In Pari Materia. This textual canon states that different statutes relating to the same subject matter should be construed together to avoid inconsistencies. Even though different statutes on the same subject matter may have been enacted at different times by different legislators, this canon presumes that the drafters of the most recent statute were aware of all previous statutes and would not have intentionally enacted inconsistent statutes.

Noscitur a sociis. This canon states that the meaning of doubtful words in a statute may be determined by reference to other words with which they are associated in the same statute. The application of this rule emphasizes the particular context in which statutory words are used.

Ejusdem generis. This canon states that when a general word follows a list of specific words in a statute, the meaning of the general word is to be limited to the same class or category of words as those that are specifically listed. This rule seeks to identify what each specifc word in the statutory listing has in common with all other specifc words in the list in order to define a category that limits the scope of potential application of the more general word or phrase used by the same statute.

Expressio unius est exclusio alterius. This canon states simply that the affirmative expression of one thing in a statute by implication also constitutes the exclusion of other things (not stated). This canon is not frequently used today in construing statutes unless the context of a particular statutory listing indicates that the legislature intended the list to be truly exhaustive.

Last antecedent. This canon states that when a statute lists a series of general words followed by words of limitation, the limiting words are applicable only to the "last antecedent" word on the list.

Plain Meaning. This rule states that when construing a statute courts are not permited to look to the legislative history of the statute to discern a meaning if the text of the statute itself is sufficiently clear and unambiguous. Presumably, in such instances, the meaning intended by the legislature is already plain to the reader and needs no further interpretation.

Provisos, Conditions, and Limitations. Conditional statutory expressions (e.g., statements beginning with phrases such as "provided that," "if," "unless," or "except that") are to be construed as limiting rather than expanding the operation of the clauses to which they refer.

Now let's look at some questions applying some of these "rules" of statutory construction. Click HERE when you are ready to proceed with these questions.