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39 SW LRev 325
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A RULE OF LAST RESORT:
A HISTORY OF THE DOCTRINE OF
THE LAST ANTECEDENT IN THE
UNITED STATES SUPREME COURT
Jeremy L. Ross*
* Law clerk to the Honorable John W. Sedwick, United States District Court for the
District of Alaska. The author would like to thank his fiance, Anna B. Dudek, for her comments,
as well as her unwavering support.
1. BLACK'S LAW DICTIONARY 1390 (9th ed. 2009) (defining reddendo singula singulis:
"[Latin 'by rendering each to each'] Assigning or distributing separate things to separate person,
or separate words to separate subjects. This was used as a rule of construction designed to give
effect to the intention of the parties who drafted the instrument.").
2. 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER, STATUTES AND STATUTORY
CONSTRUCTION § 47:26 (7th ed. 2007).
325
326 SOUTHWESTERN LAW REVIEW [Vol. 39
3. 129 S. Ct. 1079, 1086-87 (2009); see id. at 1090 (Roberts, C.J., dissenting).
4. 543 U.S. 335, 343 (2005); see id. at 355-56 (Souter, J., dissenting).
5. 540 U.S. 20 (2003).
6. Id. at 27-28.
2009] A RULE OF LAST RESORT 327
11. Id at 444.
12. 8 U.S. (4 Cranch) 75, 127 (1807).
13. Id. at 94.
14. Id
15. Id.
16. Id. at 95.
17. See id.
18. Bollman, 8 U.S. (4 Cranch) at 95.
19. 156 U.S. 426, 430-31 (1895).
2009] A RULE OF LAST RESORT 329
found that a phrase of the indictment, "the proceeds of said loans," was
ambiguous because it could alternatively signify "what was obtained by the
lender for the loans, quite as aptly as the very money lent to the
borrower." 2 0 However, because the phrase was qualified with the
modifying clause "so made thereon and thereby obtained by him," the
Court was able to conclude that "proceeds" referred to monies obtained by
the lender for the loans. Why Justice Gray needed to apply the Rule at all
is a bit unclear. The prosecution was brought against the president and
director of a national banking association accused of embezzling funds
procured on unsecured promissory notes, and it would not make sense for
the "proceeds of said loans" to refer to anything but the funds obtained by
Batchelor pursuant to the fraud.22
Justice Gray's personal affection for the Rule became apparent in two
subsequent opinions. In Johnson v. Sayre,2 3 decided in the same year as
Batchelor, Justice Gray rejected the lower court's application of the Rule in
the context of construing the limiting clause contained in the Fifth
Amendment's prohibition on prosecutions for capital or infamous crimes
"except in cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger" to apply only to the last
antecedent, "or in the militia."24 In France v. Connor,25 Justice Gray
construed an Act addressing the rules governing bigamy, polygamy, incest,
adultery, dower, and curtesy in the territory of Utah.26 The relevant section
of the Act addressed dower and curtesy and referred to "territory" in general
terms. Justice Gray invoked the Rule to conclude that "territory" could
only refer to territory of Utah and not any territory, because the previous
section referred to Utah exclusively. However, "other considerations"
compelled the same conclusion, and reference to the Rule was simply
unnecessary and made little sense, as the earlier reference to Utah appeared
27
nearly three paragraphs before the general reference to "territory."
Two decades later, the Court applied the broader doctrine of reddendo
singula singulis to certain provisions of the Seaman's Act of 1915 in
Sandberg v. McDonald,which defined the outer limits of jurisdiction in the
20. Id.
21. Id.
22. See id. at 428-31.
23. 158 U.S. 109 (1895).
24. Id. at 114.
25. 161 U.S. 65 (1896).
26. Id. at 70.
27. Id. at 71.
330 SOUTHWESTERN LA W REVIEW [Vol. 39
United States courts for acts of foreign vessels.2 8 Although the Act
referenced "foreign vessels," the extent to which acts committed aboard
foreign vessels could be subjected to the jurisdiction of the United States
courts was unclear. 2 9 Among the justifications for holding that the Act
applied to acts committed aboard foreign vessels in American ports was a
reference to the penal provision, which applied to "any such vessel."30 In
concluding that "any such vessel" included foreign vessels, the dissent
reasoned that the provision "may be distributively applied . . . [and] is
justified by the rule of reddendo singula singulis. By it words and
provisions are referred to their appropriate objects, resolving confusion and
accomplishing the intent of the law against, it may be, a strict grammatical
construction." 31 Therefore, because the Act "applies to foreign vessels as
explicitly and . . . circumstantially as it does to domestic vessels," the
dissent concluded, reddendo singula singulis, that seamen aboard foreign
vessels in American ports may bring suit under the Act.3 2
In FTC v. Mandel Brothers, Inc., 33 an opinion that was to influence the
use of the Rule in future decisions,34 Justice Douglas construed an
antecedent in the context of unfair practices claims by the Federal Trade
Commission under the Fur Products Labeling Act, 15 U.S.C. § 69.3 The
Court applied the Rule to a provision that defined the term "invoice" in
support of a claim of false invoicing of fur products. 3 6 "Invoice" was
defined in the Act as
a written account, memorandum, list, or catalog, which is issued in
connection with any commercial dealing in fur products or furs, and
describes the particulars of any fur products or furs, transported or
delivered to a purchaser, consignee, factor, bailee, correspondent, or agent,
or any other person who is engaged in dealing commercially in fur
products or furs.37
The Court of Appeals for the Seventh Circuit had modified the order of
the district court to exclude any "prohibitions relating to invoicing on the
ground that a retail sales slip was not an 'invoice' within the meaning of the
Act."3 8 In reversing the court of appeals, Justice Douglas stated that it
would "be a partial mutilation of this Act to construe it so that the 'invoice'
provisions were inapplicable to retail sales." 3 9 Because the court of appeals
read the phrase "engaged in the dealing commercially in fur products or
furs" to modify all of the preceding terms, including "purchaser, consignee,
factor, bailee, correspondent, or agent," it had concluded that an invoice
issued to a consumer, who did not himself deal in commercially in fur,
would not fall within the Act.40 Recognizing that this construction was
"possible," Justice Douglas nevertheless applied the Rule and concluded
that the limiting clause, "any other person who is engaged in dealing
commercially in fur products or furs," was to be applied "only to the last
antecedent."'"
The Court next discussed the Rule over a decade later in United States
v. Bass, in which Justice Marshall construed a statute criminalizing receipt,
possession, and transportation of firearms by felons.42 The statute provided:
Any person who-
(1) has been convicted by a court of the United States or of a State or any
political subdivision thereof of a felony . . . and who receives, possesses,
or transports in commerce or affecting commerce . . . any firearm shall be
fined not more than $10,000 or imprisoned for not more than two years, or
both.43
Although application of the Rule would have dictated that the
modifying clause "commerce or affecting commerce" apply only to crimes
involving transportation, Justice Marshall believed that the clause "ma[de]
sense" with all three crimes-of receipt, possession, and transport." The
government argued that the lack of a comma appearing after "transport"
indicated a congressional intent to limit the modifying clause to the last
antecedent.4 5 Justice Marshall rejected this argument, noting that "many
leading grammarians, while sometimes noting that commas at the end of a
46. Id.
47. See Barnhart v. Thomas, 540 U.S. 20, 27-28 (2003).
48. Id. at 22.
49. Thomas v. Comm'r of Soc. Sec., 294 F.3d 568, 570, 572 (3d Cir. 2002).
50. 42 U.S.C. § 423(d)(2)(A) (2006) (emphasis added).
51. Barnhart, 540 U.S. at 26 (citing 2A NORMAN J. SINGER, STATUTES AND STATUTORY
CONSTRUCTION § 47.33 (6th ed. 2000)).
2009] A RULE OF LAST RESORT 333
whether the statute required that past relevant work actually exist in the
national economy.52
Justice Scalia next mused about the Rule's operation as a matter of
common sense: "While this rule is not an absolute and can assuredly be
overcome by other indicia of meaning, we have said that construing a
statute in accord with the rule is 'quite sensible as a matter of grammar."'" 3
Finally, Justice Scalia provided an example meant "to illustrate the error of
the Third Circuit's perception that the specifically enumerated 'previous
work' 'must' be treated the same as the more general reference to 'any
other kind of substantial gainful work."' 5 4 The example is as follows:
Consider, for example, the case of parents who, before leaving their
teenage son alone in the house for the weekend, warn him, "You will
be punished if you throw a party or engage in any other activity that
damages the house." If the son nevertheless throws a party and is
caught, he should hardly be able to avoid punishment by arguing that
the house was not damaged. The parents proscribed (1) a party, and
(2) any other activity that damages the house. As far as appears from
what they said, their reasons for prohibiting the home-alone party may
have had nothing to do with damage to the house-for instance, the
risk that underage drinking or sexual activity would occur. And even
if their only concern was to prevent damage, it does not follow from
the fact that the same interest underlay both the specific and the
general prohibition that proof of impairment of that interest is
required for both. The parents, foreseeing that assessment of whether
an activity had in fact "damaged" the house could be disputed by their
son, might have wished to preclude all argument by specifying and
categorically prohibiting the one activity-hosting a arty-that was
most likely to cause damage and most likely to occur.
With this description, Justice Scalia not only clarified the basic nature
of the Third Circuit's erroneous reasoning, but also usurped the dubious
throne of having written more about the Rule than any member of the
Court. (He may also have inadvertently caused the cancellation of one or
more teenage house parties.) Importantly, however, Barnhart represents
the first occasion on which the Court did anything more than apply the
56. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 342-43 (2005).
57. 8 U.S.C. § 123 1(b)(2)(E) (2006).
58. Jama, 543 U.S. at 342-43.
59. Id. at 344.
2009] A RULE OF LAST RESORT 335
at issue in Bass, which contained a limiting clause "at the end of a single,
integrated list."60
In dissent, Justice Souter took issue with what he viewed as the Court
"dodg[ing] the thrust of the congressional language by invoking the last
antecedent rule as a grammatical reason for confining the requirement of a
receiving country's willingness strictly to the seventh third-step option,
where it is expressly set out."61 To the contrary, Justice Souter reasoned,
other indicia of legislative intent militated in favor of applying the
modifying clause across each subsection.6 2 For the first time, therefore, the
Court split on an issue of statutory construction based on a difference of
opinion on whether or not to apply the Rule.
Four years later, the Court divided again on whether to apply the Rule.
In Hayes, the Court addressed a provision of the Gun Control Act of 1968,
18 U.S.C. § 921, which prohibits possession of a firearm by any person
convicted of a felony.63 The Act was amended in 1996 to similarly prohibit
possession by persons convicted of "a misdemeanor crime of domestic
violence."64 Section 921(a)(33)(A), which defines "misdemeanor crime of
domestic violence," provides:
[T]he term 'misdemeanor crime of domestic violence' means an offense
that-
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who is cohabitating with or
has cohabitated with the victim as a spouse, parent, or guardian, or ba
6
person similarly situated to a spouse, parent, or guardian of the victim.
In Hayes, the question was whether a "domestic relationship" was a
defining element of the predicate offense supporting a conviction of
possession of a firearm by a person convicted of a misdemeanor crime of
domestic violence. 6 Justice Ginsburg rejected application of the Rule, and
held that because "committed by" modifies "offense," the "domestic
relationship" is not an element of the offense, although it must be