Canons of construction and interpretation are rules of thumb that are applied by courts when they try to apply laws to specific cases. These canons help courts know how to interpret the words of the laws. If we are writing a proposed amendment to the Constitution, we should be aware of the canons of construction and interpretation so we do not write our amendment in such a way that will cause courts to misinterpret it when they apply the canons. Let us look at three canons to illustrate this idea.
One canon of construction and interpretation is that every word or phrase in a law (or amendment) has to mean something. Courts should interpret laws in such a way that they do not make a given word or phrase irrelevant. When we go to write our proposed amendment, we have to be sure that every word that we write has meaning and is meant to be in the amendment. If we put extra words in, we will potentially confuse courts that have to interpret our amendment.
Another canon is the idea of Ejusdem Generis. This canon comes into play when a law lists a group of people or situations to which the law applies and the court has to decide whether the law also applies to various people or situations that are not listed. This canon holds that general words that come after specific words only apply to things similar to the specific words. For example, imagine that we drafted an amendment specifying that “lesbians, homosexuals, transgender persons, and other people subject to discrimination” should enjoy the equal protection of the law. Courts would have to interpret “other people” to mean people who are like lesbians, homosexuals, and transgender persons. If we put such a list in our amendment, we have to be aware of this canon.
Finally, there is the canon that says that including one thing excludes others. This means that a law only applies to things listed in it, not to things that are not listed. For example, if our amendment prohibits discrimination against “lesbians and gay men” a court would interpret it to be limited to those groups. It would not, for example, apply to transgender persons because the list did not include them and did not include any language to imply that they would be included. We must be sure that we write our amendment carefully so that it clearly applies to all the people and situations we intend.