Professors Jonathan Macey and Geoffrey Miller claim to have set out to provide a positivist explanation for why judges ever invoke canons in the course of interpreting statutes.' In truth, though, their question is a far broader one. What they really seek to explain is why judges ever use any interpretive tools in the course of interpreting statutes. Why, Macey and Miller want to know, don't judges simply decide what result in the case will best promote a good outcome on the grounds of public policy, intrinsic fairness, economic efficiency or wealth maximization? This question is perplexing to Macey and Miller because they are convinced (as a normative matter) that such public policy factors (what they refer to as exogenous considerations) necessarily should trump any interpretive methodology (interior justifications) such as looking at the plain language of the statute or invoking recognized canons to help discern legislative intent or purpose. Macey and Miller are not at all shy about this premise: Policy justifications clearly trump other justifications in any meaningful hierarchy of judicial values.
It makes sense to invoke non-policy justifications for deciding cases only when judges are unable to determine the policy implications of a particular decision. The following example illustrates this point. Suppose a judge could decide a case one way by invoking a canon of statutory construction, or another way by invoking some public policy rationale. Suppose further that societal wealth and human flourishing would increase dramatically if the decision were made on the basis of public policy, but would diminish dramatically if the case were decided on the basis of the canons. Quite clearly, the public policy justification should trump the canon.
Lawrence C. Marshall,
The Canons of Statutory Construction and Judicial Constraints: A Response to Macey and Miller,
45 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol45/iss3/11