The Rhetorical Canons of Construction: New Textualism’s Rhetoric Problem

Charlie Stewart*

New Textualism is ascendant. Elevated to prominence by the late Justice Antonin Scalia and championed by others like Justice Neil Gorsuch, the method of interpretation occupies an increasingly dominant place in American jurisprudence. Yet, this Comment argues the proponents of New Textualism acted unfairly to reach this lofty perch. To reach this conclusion, this Comment develops and applies a framework to evaluate the rhetoric behind New Textualism: the rhetorical canons of construction. Through the rhetorical canons, this Comment demonstrates that proponents of New Textualism advance specious arguments, declare other methods illegitimate hypocritically, refuse to engage with the merits of their opponents’ arguments, and believe their method provides the best plain meaning.

*J.D. Candidate, May 2018, University of Michigan Law School. I would like to first thank my family for their unwavering support before and throughout law school (hi Mom!). I would also like to thank Professor Nina Mendelson, for the inspiration and development of this Comment. Finally, I would like to thank the many editors of the Michigan Law Review who worked on and significantly improved this Comment—especially the Volume 116 Notes Office, Sally Gu, Paul Hoversten, and the Volume 117 Executive Editors who provided multiple rounds of needed edits. Any errors are mine.

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