Jeremy Christiansen (Regent University – Regent University School of Law) has posted Proprius Effectus Legis: Saving Substantive Canons and Presumptions Through a Presumption of Legislative and Executive Morality on SSRN. Here is the abstract:
In its recent decision in Loper Bright, the Supreme Court made an interesting observation about the role of presumption, i.e., that they have a place interpretation, “only to the extent that they approximate reality.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 399 (2024). What does this mean? Judges regularly presume that laws, for example, were not intended to create absurdities. Yet our inner realists would concede that in “reality,” legislatures may have in fact intended some absurdity. The same goes for presumptions about consistency in the law (harmonizing statutes, implied repeal), and even constitutionality. Should we abandon such presumptions if our political realities become seemingly unvirtuous? Should we open up an inquest into each executive determination to prosecute or decline to prosecute to plumb the depths of the prosecutor’s motives at every turn? As Professor Abbe R. Gluck has pointed out in the wake of Loper-Bright, the Court’s language, if taken seriously, would require the Court to “reassess many other canons.” Moreover, the Court’s decision in Loper-Bright, did not come from nowhere, but is consistent with a decades-long textualist project that has attacked or diminished substantive canons of construction, largely along similar lines embraced by Loper-Bright. With that context in mind, it seems the substantive canons really are potentially in jeopardy. This Article is the first to offer a defense of some traditional canons of construction and presumptions from the perspective of the classical legal tradition as the means of saving them. Precepts of the classical legal tradition shed light on what the law really is, essentially. For the classical tradition, the proper effect of law is the habituation of virtue in its subjects, and all law, properly speaking, is aimed at promoting the common good. The presumption of regularity, of legal rationality and so forth all do, in fact, approximate “reality” when we conceive of law in its proper essence-an ordinance of reason the very purpose of which is to direct people to their proper end of virtue. Viewed in that light, these canons and presumptions which ultimately presume lawfulness and public morality on the part of the legislature and/or executive-can justify the substantive canons, for they help us understand the reality of the law itself, and provide grounds for interpreting that law in accordance with its essence.