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

Authors

Charlie D. Stewart, University of Michigan Law SchoolFollow

Abstract

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.

Recommended Citation

Charlie D. Stewart, The Rhetorical Canons of Construction: New Textualism's Rhetoric Problem, 116 Mich. L. Rev. 1485 (2018).
Available at: https://repository.law.umich.edu/mlr/vol116/iss8/6