In recent years, the Supreme Court has developed the “major questions doctrine,”1 an interpretive presumption that Congress must speak clearly before delegating to an agency any power of “vast economic and political significance.”2 Justices3 and scholars4 generally consider the doctrine a substantive canon: a rule instructing judges to exchange the most natural reading of statutory language for an inferior reading that favors a desired outcome,5 unless the language is too clear to muddle.6
Given the Court’s originalist turn,7 one would presume that the major questions doctrine is compatible with originalism.8 In a recent article,9 Professor Michael Ramsey submits that it is, arguing that the use of the major questions doctrine and other substantive canons falls within the original meaning of the judicial power.10 Ramsey looks to early post-ratification practice,11 from which he identifies four substantive canons that each limited the reach of, or “underenforce[d],” federal laws.12 Ramsey concludes that the judicial power thus permits judges to develop similar underenforcement canons,13 including the major questions doctrine.14
Ramsey’s framework falters on three levels: First, in early post-ratification practice, courts did not invent new canons, but rather applied canons already in use prior to ratification. A power to develop canons does not follow from this evidence. Second, early canons were not intended only to restrict the scope of statutes, as they were equally capable of enforcing statutes beyond their most natural reading. If a power to develop canons exists, it cannot be limited to those that underenforce statutes. Because Ramsey rationalizes his conception of judicial power as modest,15 its expansive implications are troubling. Finally, Ramsey relies almost exclusively on post-ratification practice and silence, controversial evidence in the originalist sphere.
This Note advances an alternative originalist framework: A substantive canon falls within the judicial power only if it both predated ratification as a clearly stated principle in judicial practice and survived ratification as a bounded power that respects constitutional structure. The Constitution repudiated whatever meta-lawmaking power existed to invent substantive canons in England, but incorporated nearly all extant canons into the judicial power. Substantive canons incompatible with constitutional structure, however, did not survive ratification.16 This clear statement rule for clear statement rules aligns with popular conceptions of originalism and shifts the presumption of judicial power back toward a limited role of faithful agency — a vital guardrail against the temptations of judicial overreach.
Part I of this Note evaluates Ramsey’s framework, first reassessing the history and scope of early substantive canons and then identifying tensions between originalism and reliance on post-ratification practice. Part II articulates a two-part framework to discern which substantive canons are consistent with the original meaning of the judicial power. This Note concludes with skepticism toward invocation of the major questions doctrine in its substantive form by originalist jurists.
I. Judicial Power Through Judicial Practice
To placate an originalist, use of the major questions doctrine must fall under the original meaning17 of the Article III “judicial Power.”18 Ramsey advances two contentions to support its use. First, he asserts that the major questions doctrine bears a resemblance to canons developed in early post-ratification America that “underenforce[d] statutes to protect core founding-era values.”19 Second, he proposes that the unchallenged use of these early canons indicates the judicial power “includ[es] some power to develop and apply substantive canons.”20 He thus extrapolates “a judicial power to develop new limiting canons such as the major questions doctrine in the modern era.”21 Part I addresses these contentions in turn.
A. Revisiting the Early Substantive Canons
Ramsey presents two shared features of the major questions doctrine and early canons. The Roberts Court’s major questions doctrine (1) underenforces statutes22 in order to (2) protect “a core founding-era value” of separation of powers.23 Similarly, early judicial practice (1) invoked what Ramsey describes as “limiting canons” that narrowed federal laws to (2) preserve “important, widely shared values.”24 He identifies four such canons: the presumption against violations of international law,25 the presumption against civil retroactivity,26 the rule of lenity,27 and the presumption against judicial review.28 Ramsey concludes that the major questions doctrine falls within an established “judicial power to develop substantive canons”29 that “underenforce statutes to protect core founding-era values from judicial error.”30
Two issues arise. First, each identified canon predated ratification, meaning their invocation cannot serve as evidence of a judicial power to develop new post-ratification canons, but merely to apply existing ones. Second, although Ramsey casts the early canons as one-way ratchets — tools that “only allowed courts to give an ambiguous text something less than its most plausible meaning”31 — three of the four canons also empowered courts to go the other way, expanding a law beyond its most natural reading. If these early canons are instructive, the judicial power to develop substantive canons cannot be restricted to those that underenforce statutes, swelling the power beyond Ramsey’s modest depiction.32
1. Presumption Against Violating International Law. — Ramsey first considers “[t]he most familiar”33 early substantive canon,34 commonly referred to as the Charming Betsy canon.35 This name derives from Murray v. Schooner Charming Betsy,36 in which Chief Justice Marshall declared “that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”37 The Charming Betsy canon presumes that Congress would speak clearly before violating international law.
And yet, despite its name, this presumption existed before Charming Betsy.38 In fact, it existed before Marbury v. Madison39 enshrined judicial review in 1803,40 and before the Constitution was written in 1787.41 Alexander Hamilton advocated for its use in a 1784 case,42 securing a favorable ruling in Rutgers v. Waddington.43 In interpreting a New York statute so as not to infringe upon international law, Chief Judge Duane (himself a delegate to the Continental Congress and an influential voice among the Founders44) asserted that “repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the Legislature passed this statute; and we think ourselves bound to exempt that law from its operation.”45 News of Rutgers made its way to George Washington, who remarked that “reason seems very much in favor of the opinion given by the Court.”46 The lower court in Charming Betsy took the canon from “the opinion of the British judges” and “the general current of opinions of civilians and writers on general law,”47 presumably including admired jurists such as Emer de Vattel, whose writing substantially predated ratification48 — demonstrative of the presumption’s developed status. To dispel any notion that this canon originated as post-ratification practice,49 this Note substitutes its standard name for a descriptive alternative: the presumption against violating international law.
Further, the canon permits overenforcement of statutes. While Ramsey is correct that the Court in Charming Betsy (and in Talbot v. Seeman50) interpreted a statute narrowly to avoid violating international law,51 the presumption would symmetrically instruct judges to interpret a statute broadly if international law required it.52 For instance, where the United States codifies customary international law, judges interpret statutory language to incorporate affirmative international obligations,53 expanding its statutory force. Though there is some debate as to what this canon demands in the present day,54 early iterations prioritized the substantive outcome — nonviolation of international law — above any underenforcement principle.55 The presumption against violating international law thus does not fit Ramsey’s mold: It derives from pre-ratification practice, and its use might expand the most natural interpretation of a statute.
2. Presumption Against Civil Retroactivity. — Ramsey introduces a second canon, the presumption against civil retroactivity, with another case from the turn of the nineteenth century.56 In United States v. Heth,57 the Court delivered seriatim opinions that declined to extend a civil statute’s reach to acts that took place prior to its enactment, as the statute did not express an intent to apply retroactively.58 Yet, just like Charming Betsy, Heth merely invoked, and did not invent, the canon.59 Nonretroactivity stretches back further and farther, originating overseas in Roman law.60 However, Ramsey’s underenforcement analysis here is persuasive: The presumption can be applied only to confine the scope of a statute, so it resembles a limiting canon.61
3. Rule of Lenity. — Ramsey next addresses the rule of lenity, which instructs courts to interpret penal statutes “strictly” to avoid overenforcement of penalties.62 Like the previous two canons, the rule of lenity substantially predated the Constitution, with “[m]ultitudes of cases . . . to be found” hinging on its application.63 As early as 1820, Justice Marshall referred to the rule of lenity as an “ancient maxim.”64
In a sense, the rule of lenity is unidirectional, as it can be applied only to restrict the punitive reach of a statute.65 But, in certain situations, it may guide judges to interpret statutes expansively: The exceptions in a penal statute should be read liberally.66 Recently, in Pulsifer v. United States,67 the federal government asked the Court to hold that the rule of lenity does not apply to “ameliorative” provisions in sentencing laws.68 The Court declined to reach that question,69 and the dissent asserted that the rule of lenity remains appropriate in such a circumstance.70 So while Ramsey’s characterization is a fair one at first glance — the rule of lenity consistently underenforces the main thrust of penal statutes — overenforcement of provisions within a criminal statute lingers as a possible result. Like the presumption against violating international law, the rule of lenity’s overarching aim is not to second-guess or weaken the words of Congress, but to protect a category of outcomes.
4. Presumption Against Judicial Review. — The final presumption raised by Ramsey is a “duty of clarity”71 that requires a heightened level of certainty before judges may invalidate unconstitutional laws.72 Other scholars have described this presumption as a “clear error rule.”73 Like each of the canons above, it was respected prior to ratification of the federal Constitution,74 and it has roots in English common law.75
The presumption against judicial review unequivocally overenforces statutes. The duty of clarity restrains judges from striking down statutes at the margins of constitutionality.76 Ramsey creatively casts this as underenforcement of a law (the Constitution),77 but the ultimate effect is to give ambiguous statutory language something more than its most plausible meaning78 — empowering courts to expand the reach of statutes.79
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In sum, all four canons identified by Ramsey as early instantiations of the judicial power can be traced to pre-ratification practice. Thus, they do not support an inferred power to develop new canons such as the major questions doctrine, but rather a power to apply existing canons that predated ratification.80 Ramsey posits that if canons originated in England, there must have existed an English power to develop canons,81 which the Constitution may have “carrie[d] over.”82 But that final proposition is an argument in search of evidence. While this Note takes the bolder view that the Constitution repudiated any canon-making power,83 the practice on which Ramsey relies cannot alone support his thesis.84
Further, three of the four canons empower judges to overenforce statutes. To extrapolate from the early canons the power exclusively to underenforce statutes to preserve any “core founding-era value” would thus be a mistake.85 Because their force is bidirectional, such a power would have to permit both underenforcement and overenforcement of statutes,86 eviscerating one of Ramsey’s two limiting principles. And the other criterion is hardly limiting: The search for a “core founding-era value” yields kaleidoscopic results. This holistic standard87 mimics the framework of history-and-tradition inquiries,88 which are plagued by allegations of indeterminacy89 and bias.90 Ramsey’s framework would thus permit expansive judicial lawmaking, with a canon for every value91 held by a sitting judge that could pass muster as one widely shared at the Founding.92
Ramsey’s framework is intriguing, but the current batch of evidence guides this Note to a different conclusion. And if stronger post-ratification evidence could be found, the practice of looking past the Founding era to discern original meaning would still be troubling.
B. Difficulties with Reliance on Post-Ratification Practice
Even if early American cases did functionally develop substantive canons,93 such practice ought to bear little on original meaning. First, jurists have yet to declare the definitive period at which constitutional meaning is set in amber. Second, scant faith should be placed in early practitioners who often disagreed and engaged in motivated reasoning. Third, declaring power based on “uncontested use”94 requires judges to draw inferences from silence.
1. Identifying a Brink. — There are several “unsettled questions” concerning post-ratification practice.95 Chief among them is at what point it ceases to be illustrative of original meaning and begins to paint an altogether new picture.96 Eventually, practice “that long postdates ratification does not serve that [probative] function.”97 While a string of case law considers actions by the First Congress, whose members “had taken part in framing” the Constitution, as “contemporaneous and weighty evidence,”98 other decisions have deemed “innovations of the mid- to late-19th-century courts . . . too late.”99 But between these points lies jurisprudential uncertainty. In this liminal period, where Ramsey’s post-ratification references fall,100 jurists might reasonably disagree on whether practice implements original meaning.
2. Trusting the Judiciary. — While reliance on any and all post-ratification practice should elicit trepidation, judicial practice that expanded judicial power is especially dubious. First, early actions supply contradictory evidence.101 Many of the early legislators, executive officials, and jurists were present at the Founding. And yet they clashed over the Constitution all the same. Those disagreements manifested in inconsistent early practice, making it impossible to inoculate every turn-of-the-century statute, enforcement action, and judicial decision from critique.102 If one asserted that judicial practice should control in cases of conflict,103 that would imply every divergent legislative and executive interpretation of the Constitution was incorrect. But it is inconceivable that one branch always got it right. While the Court may have the power “to say what the law is,”104 that does not mean it accurately captures what the law’s original meaning was — precisely why originalists are wary of precedent.105 Second, if public officials acted in their own interests,106 one should be highly skeptical of judicial opinions that siphoned power from the other branches. Thus, even if courts developed new substantive canons soon after ratification, that practice should weigh little when deducing the original meaning of the judicial power.
3. Listening to Silence. — To support his framework, Ramsey invokes the “apparently uncontested use” of substantive canons in the early nineteenth century.107 A few problems emerge. First, while the absence of documented conflict precludes a finding of controversy, this nonfinding does not serve as affirmative evidence that there was no controversy at all. Second, it is quite plausible the public did not have an opportunity in this period to receive and deliberate over judicial opinions and their application of canons. The early days of American court reporting were beset by “delay, expense, omission[,] and inaccuracy.”108 There were multiyear gaps between publication of Alexander Dallas’s reports,109 and doctrine often spread by word of mouth before it was put to paper.110 Contemporary accounts in the press were of little use, as they consistently missed or misstated important points.111 If people struggled to decipher the outcomes of cases, it is hard to imagine that they were discussing and debating the intricacies of interpretive rules.112
Supposing the public both knew of and decided not to contest early use of substantive canons, it is still inappropriate to draw anything greater than the narrowest inference113: Perhaps the public believed the judicial power extended to develop these, but only these, substantive canons.114 Or perhaps they acquiesced because they thought the Court to be exceeding its authority, but not dangerously so. While beyond the scope of this Note, acquiescence as scholars interpret it115 seems in serious, perhaps irreconcilable, conflict with precedent-skeptical originalism: What’s wrong stays wrong, no matter how long.116 Moreover, acquiescence exerts a pernicious “use it or lose it” pressure117 on the public to challenge every misuse of power or risk losing their rights.118 One must balance the benefit of civic awareness with the cost of civic anxiety.
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These three concerns present serious challenges for reliance on post-ratification practice119 and cast doubt on the authority asserted by Ramsey of courts to develop new substantive canons. Instead of looking to post-ratification practice, this Note shifts its focus to Founding-era evidence. An alternative framework emerges from this historical inquiry.
II. An Originalist Framework for Substantive Canons
Some doubt whether originalists ought to use any substantive canons at all.120 While the far ends of originalism’s adherents are difficult to hold together,121 this Note proposes a new framework122 that aims to bring most on board123: Substantive canons fall within the original meaning of the judicial power if they were observed as a clearly stated principle in pre-ratification practice and were not repudiated by the Constitution. This framework stems from two well-worn inferences. First, established rules are woven into the interpretive backdrop.124 Thus, extant canons were incorporated into the Founders’ conception of the judicial power, unless expressed otherwise. Second, the Constitution foreclosed expansive judicial lawmaking,125 meaning the power to develop new canons — a lawmaking authority rooted in earlier practice — could not survive ratification. By setting strict thresholds and a strong negative presumption, the test functions as a clear statement rule for clear statement rules. Better still, this meta-rule puts judicial restraint126 in the driver’s seat, rather than pasted across the bumper.127
A. The Framework
1. Incorporation of Pre-Ratification Practice. — When the Founders drafted the Constitution, they did not start from scratch.128 Every constitutional provision was informed (if not determined) by background assumptions about what the language would convey.129 These assumptions, in turn, were based on longstanding and salient practice.130 An influential theory, original methods originalism, calls on those reading the Constitution to restrict themselves to the interpretive rules the Founders used.131 On this view, the Founders conceived and crafted the judicial power against the interpretive backdrop of pre-ratification practice.132 It follows that the Founders understood the judicial power to presumptively include the interpretive tools they knew.133
2. A Cap on Judicial Lawmaking. — Professors William Eskridge and John Manning have extensively debated the scope of judicial power,134 including whether the Founders contemplated it as inclusive of equitable interpretation,135 an atextual tradition in English courts136 that elevated judicial reason over legislative intent in statutory interpretation.137 Such a power would in theory permit courts to develop new canons.
The stakes here are high: If the Constitution vitiated equitable interpretation, then the weight of other Founding-era evidence138 indicates that originalist judges should be faithful agents of Congress and adhere to textualism.139 While such an originalist-textualist alignment is conventional140 and intuitive,141 it poses difficulties for these judges’ use of substantive canons.142 Conversely, if equitable interpretation survived ratification, originalists could invent canons as they go along.143 This debate would suggest that originalists can be either textualists or purveyors of substantive canons, but not both.144
However, a middle ground exists. This Note theorizes that the Constitution placed a cap on judicial lawmaking. Interpretive principles already developed by judges were admitted as part of the judicial power, but practices that permitted judges to develop new principles — a meta-lawmaking power — were repudiated by constitutional structure. The Founders could not assign such power to the judiciary without collapsing a conscious division between the judicial and legislative powers. Thus, originalist judges must reject a canon-making power.
Eskridge and Manning agree that, while background principles informed early drafts of the Constitution, the Founders nevertheless intended to depart from certain precedents.145 Manning persuasively argues that equitable interpretation is best understood as a slurry of legislative and judicial functions.146 The Constitution’s division of these functions across branches represents a deliberate break from such “broad judicial lawmaking powers.”147 While Antifederalists expressed apprehension during the ratification process that the judicial power would include equitable interpretation,148 these writings were “calculated to sow apprehension”149 and were quickly rebuffed by Federalist responses150 — an indication that the Founders supporting ratification did not advertise the judicial power to the public as elastic or generative.151
Hamilton was a vocal opponent of unbridled judicial lawmaking — and his perspective is especially instructive as one of the earliest scholars152 and strongest supporters153 of judicial review.154 Hamilton acknowledged that judges could, “on the pretense of a repugnancy,” prioritize their “pleasure” over the will of Congress.155 But this, he reasoned, would be an abdication of their duty to provide judgment.156 Instead, “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”157 Such rules might permit judges placing a slight thumb on the interpretive scale, but never a fist: “Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to . . . affect the order of the political system.”158 Hamilton’s writing comports with a perspective that the Founders sought to confine the judicial power and prevent meta-lawmaking, but were not concerned about bounded, already-developed canons in the interpretive toolkit — encapsulated in the “strict rules and precedents” that antedate a judge’s disposition.159
B. Assessing Substantive Canons
From this interpretation of the judicial power’s original meaning, substantive canons are legitimate only if they are observed in longstanding or salient pre-ratification practice and do not provide judges with unbounded lawmaking authority. Subjecting canons to this test reveals its contours.
1. Early Canons. — The four early canons identified by Ramsey satisfy the test. First, as iterated above, they each advance a clearly stated principle that predated ratification.160 Ramsey accepts nonretroactivity and lenity as continuations of longstanding practice,161 but he contends that the presumption against violating international law lacks firm pre-ratification roots.162 If not longstanding,163 this presumption’s early impressions are nevertheless salient. When looking to original meaning, Rutgers is particularly incisive, as it was argued by one of the Constitution’s key architects164 and an author of the Federalist Papers.165 And, unlike other judicial decisions lost to omission or obscurity,166 it caught the attention of other Founders;167 when it came time to draft the Constitution, they surely kept Rutgers in mind.168
Second, whatever lawmaking authority underlies these canons is bounded: Judges can modulate interpretations only to promote a discrete endpoint, which informs the legislative process169 and can be overridden through intentional drafting.170 These canons thus survived ratification.
2. Absurdity Doctrine. — The presumption against absurd results171 should be left behind by originalists.172 While the canon preceded ratification,173 its principle operates at an inordinately high level of generality and is thus “worlds apart from the relatively definite background conventions” formed by other substantive canons.174 The endpoint of the absurdity doctrine is normalcy.175 But normalcy is in the eye of the beholder. Thus, it more closely resembles equitable interpretation, as it neither puts Congress on notice nor establishes an objective basis on which judges may make law,176 but rather affords judges unbounded lawmaking authority.
3. Constitutional Avoidance. — The legitimacy of constitutional avoidance depends on its form. This canon postdated the document it protects.177 But its earliest iteration (the classic form178) sounds in the same principle as the pre-ratification presumption against judicial review: to avoid invalidating a statute’s potentially constitutional components.179 The presumption against judicial review upholds a statute in potential conflict with the Constitution, and classic constitutional avoidance refines a statute in direct conflict with the Constitution so as to uphold it. However, the modern form of constitutional avoidance180 inverts the presumption against judicial review: It underenforces statutes and overenforces the Constitution.181 Judges employing the modern form may undermine the supreme status of laws182 by adjusting them before concluding that they violate the Constitution, in apparent contravention of Article VI.183 While the classic form might be fairly traceable to pre-ratification practice, the modern form is antithetical to such practice and thus falls outside the judicial power.
4. Major Questions Doctrine. — As indicated by the Introduction,184 this presumption significantly postdated ratification.185 Scholars have fashioned creative analogies in defense of the doctrine, attempting to draw authority from early presumptions against unenumerated power186 and delegation of extraordinary powers in agency law.187 But, even if this evidence predated ratification, and most of it does not,188 one must make multiple analytical leaps to reach the major questions doctrine. No clearly stated principle supporting the doctrine preceded ratification. Attempts by the Justices189 to ground the doctrine in nebulous separation of powers principles190 or a broader appeal to substantive canons writ large191 instead of specific Founding-era presumptions underscore that the doctrine lacks the requisite history.192 And if the canon did predate ratification, it would have been repudiated on its own reading of Article I: Grounded in the principle that the lawmaking power is reserved for Congress, the canon ironically arrogates lawmaking power to judges,193 without any clear congressional authorization.194 Perhaps these failings are why Justice Barrett categorizes the presumption as a “common sense” linguistic canon,195 and assures that “if the major questions doctrine were a newly minted strong-form canon, [she] would not embrace it.”196
5. Twentieth-Century Canons. — A subset of substantive canons are considered artifacts of the twentieth century and correspondingly fall beyond the scope of the judicial power.197 The federalism canon was first iterated as a “presumption against preemption” in the 1940s,198 stemming from principles developed in the 1910s,199 and it subsequently proliferated into an array of “super-strong clear statement rules” in the 1980s and 1990s.200 Scholars201 and judges202 agree that the pro-veteran canon formally emerged in the 1940s. And while “[c]ongressional intent to care for veterans has been evident since before the Founding,”203 this conviction did not manifest in an interpretive rule prior to ratification.
Conclusion
A demure description of clear statement rules as “limiting canons”204 obscures the reality that even as they (concededly often205) narrow statutes, they expand judicial power. If substantive canons merely functioned as tiebreakers, then they would indeed “avert potentially costly judicial errors”206 where the risk of error is high. Yet in practice, these canons steamroll congressional intent, empowering judicial activism through the brandishing of “get-out-of-text-free cards.”207 They generate more interpretive errors than they avoid.208 Such errors are permissible only if the textual strain is a constitutionally authorized invocation of the judicial power. Under an originalist framework, the judicial power is properly restricted to substantive canons that predated and survived ratification.
Ramsey’s article is engaging and insightful,209 and divergences between his and this Note’s analysis demonstrate the wide range of approaches under the originalist umbrella.210 But ultimately, the power he draws from early judicial practice to generate new canons would sweep too broadly. None of the evidence advanced by Ramsey supports a power to develop, rather than apply, substantive canons. If such a power existed, modern judges could invent novel canons to promote their own substantive preferences, unfettered by semblances of underenforcement.211
To some, the alternative framework this Note proposes may appear excessively austere, filtering out salutary and benign canons legitimized by good reason or longstanding practice. Yet such temerity is a tenet of originalism.212 Enforcing the original meaning of the judicial power counsels against canonization of substantive rules that were not perceived and tacitly incorporated by the Founders. As a canon that postdates ratification and distorts constitutional structure, the major questions doctrine should, in its substantive form, be rejected by originalists.