October 02, 2008

"The Hidden Legacy of Holy Trinity Church: The National Narrative Canon"

Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:

    This essay explores an under-appreciated legacy of the Supreme Court's (in)famous decision in Holy Trinity Church v. United States. While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion, which declares that the "spirit" of a statute should trump its "letter" and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's second half, in which the Court tells a lengthy narrative about the country's historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church - because the United States "is a Christian nation."

    The essay maps out the methodology of the Holy Trinity Court's "Christian nation" argument and contends that that methodology constitutes an interpretive canon in its own right - one which the essay labels the "national narrative" canon. The essay goes on to demonstrate that this interpretative canon has reared its head in a number of statutory interpretation cases decided since Holy Trinity. In Flood v. Kuhn, for example, the Court, in determining whether the antitrust laws govern baseball's reserve system, paid lengthy tribute to the historical and national significance of baseball in a manner (methodologically) reminiscent of the Holy Trinity Court's Christian nation narrative. Likewise, in Leo Sheep v. United States, the Court waxed eloquent about the critical role of railroads in settling the American West in the course of determining the extent of property rights conveyed to the railroads by the United States government. And in FDA v. Brown & Williamson and Morton v. Mancari the Court similarly relied, in part, on a tobacco narrative and a Native American usurpation narrative to construe the respective statutes at issue in those cases. The essay draws a number of parallels between these cases, noting, for example, that the Court always has used the national narrative canon as a guide to congressional intent and to carve out a statutory exception for one special national entity. The essay concludes by evaluating the newly-identified, but long extant, national narrative canon as an interpretive tool and by exploring the canon's implications for different theories of statutory interpretation.

I read this very interesting paper in draft last summer. Great to read if you are teaching legislation this semester.

Posted by Rick Hasen at October 2, 2008 07:20 AM