Calling on U.S. Courts to Adopt Canada's Unified Approach to Statutory Interpretation

I. INTRODUCTION In the United States, courts have been divided between the new-textualist and purposive approaches to statutory interpretation, although currently the new-textualist approach appears to dominate. (1) This paper encourages courts using either approach to consider adopting the "unified textual, contextual and purposive approach to statutory interpretation" (2) (also referred to as the "words-in-total-contexts approach" (3)), as it has been developed by the Supreme Court of Canada in recent years. II. STATUTORY INTERPRETATION IN THE UNITED STATES: NEW TEXTUALIST AND PURPOSIVE APPROACHES The common objective of all approaches to statutory interpretation is "to ascertain and effectuate the legislative intent wherever possible." (4) This common objective is typically referred to as a cardinal rule of interpretation. The approaches differ, however, in their conception of the legislative intent as well as in their method of ascertaining that intent. And the various ways in which to interpret statutes all fit within the broad categories of either the textualist or the purposive approach. (5) The legal systems of the past were usually dominated by a "word-oriented (i.e. objective) approach" to interpretation. (6) This objective approach, which is broadly referred to in the United States as textualism, is based on the plain-meaning rule. Textualism has evolved over time from the traditional approach (commonly referred to as old textualism), which relies on a soft plain-meaning rule, to the more recent new textualism, which relies on a hard plain-meaning rule. (7) According to the traditional textualist approach, the goal of statutory interpretation was to identify and give effect to the intent and purpose of the enacting Congress based on the plain meaning of the statutory text, derived by using the aid of dictionaries and generally accepted conceptions of ordinary parlance. (8) Yet, the courts using this approach would also consult the legislative history (9) in order to check for evidence of congressional intention inconsistent with the intention conveyed by the plain meaning of the words. (10) If such inconsistency is found, then under this traditional approach, "the plainest meaning can be trumped by contradictory legislative history." (11) This result, which led to characterizations of the old textualists' reliance on the statute's plain meaning as soft, was exemplified by cases such as INS v. Cardoza-Fonseca (12) and TV A v. Hill. (13) By the 1980s, the traditional textualist approach attracted significant criticism, (14) which influenced some members of the United States Supreme Court--notably Justice Scalia--to increasingly replace the old textualism with a new approach. This new textualism "favors understanding the text the way a reasonable reader would have read it at the time it was enacted," and its adherents' goal "is not to discover ... what the legislature wanted, but rather what it said." (15) Indeed, if asked how a court--presumed to embody the reasonable person (16)--should ascertain the intention conveyed by the plain meaning of a statute, the new textualists' reply is that judges "must study the language of the text as a whole, and if the statute is plain, they should give it its plain meaning"; that "[t]hey may also consult dictionaries and linguistic aids to equip themselves with information about how readers understood the statute at the time of its enactment"; and that "[t]hey may consult interpretive maxims in effect at the time of enactment." (17) New textualists believe in addition that "a text cannot be understood out of context," and "permit interpreters to consult other statutes passed by the legislature, in order to draw inferences from the legislature's use of similar language." (18) They do not, however, "allow interpreters to consult legislative history or the system's fundamental values as they existed at the time of interpretation. …