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A RULE OF LAST RESORT: A HISTORY OF THE DOCTRINE OF THE ...

03 ross (final) (do not delete) 5/10/2010 4:49 pm 325 a rule of last resort: a history of the doctrine of the last antecedent in the united states supreme court

03 ROSS (FINAL) (DO NOT DELETE) 5/10/2010 4:49 PM

A RULE OF LAST RESORT:
A HISTORY OF THE DOCTRINE OF

THE LAST ANTECEDENT IN THE
UNITED STATES SUPREME COURT

Jeremy L. Ross*

The doctrine of the last antecedent, known more broadly as reddendo
singula singulis1 (the ―Rule‖), provides that a ―limited or restrictive clause
contained in a statute is generally construed to refer to and limit and restrict
an immediately preceding clause or the last antecedent.‖2 The operation of
the Rule is not as simple. For instance, a law firm partner instructs her
associate to review a client‘s file ―for emails or documents written by the
CEO.‖ Although ambiguous, an astute associate would not apply the Rule,
but would read the modifying clause, ―written by the CEO,‖ as modifying
both the first and last antecedent and search for both emails written by the
CEO and documents written by the CEO. But suppose the partner had
asked the associate to review a client‘s file ―for the CEO‘s emails or
documents containing the name ‗Bob Loblaw.‘‖ That request may be more
ambiguous than the first. Should the associate review the file for the CEO‘s
emails containing ―Bob Loblaw,‖ or does the modifying clause ―containing
the name ‗Bob Loblaw‘‖ only apply to the last antecedent ―documents‖?
Application of the Rule would dictate that the partner is seeking all of the
CEO‘s emails, regardless of whether ―Bob Loblaw‖ is mentioned, as well

* Law clerk to the Honorable John W. Sedwick, United States District Court for the
District of Alaska. The author would like to thank his fiancée, 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

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as all documents written by any author that contain a reference to ―Bob
Loblaw.‖ Although the latter category may also include some of the CEO‘s
emails, a failure to apply the Rule would necessarily lead to a failure to
procure all of the requested documents, because the associate would have
limited his search of the CEO‘s emails to only those in which ―Bob
Loblaw‖ is referenced.

The decision to apply the Rule may manifest as a matter of common
sense to many lawmakers and attorneys. Nevertheless, the Rule has
become a centerpiece of reasoning in the United States Supreme Court in
the last decade. Two recent Supreme Court decisions have revealed that the
decision to apply the Rule may be less a matter of common sense than
nonsensical statutory construction. In each decision, Justices in the
majority and dissenting opinions disagreed over whether to apply the Rule,
and engaged in a canonical melee over the proper construction of
ambiguous modifying clauses. In United States v. Hayes, Justice Ginsburg
(for the majority) and Chief Justice Roberts (dissenting) argued over the
proper application of the Rule in construing the elements of a firearm
possession statute.3 In Jama v. Immigration and Customs Enforcement,
Justices Scalia (for the majority) and Souter (dissenting) wrestled over
application of the Rule in the context of an alien removal statute.4 In both
Hayes and Jama, the Rule provided not only a basis for decision, but a
weapon with which the justices waged a fruitless war over the proper
construction of two hopelessly ambiguous statutes.

The importance of the Rule in each of these decisions may be attributed
to an earlier decision of the Court, Barnhart v. Thomas,5 a 2003 opinion
authored by Justice Scalia, which has become the seminal authority on the
Rule. Since 2003, Barnhart has been cited by over fifty federal courts
discussing or applying the Rule. Part of Barnhart‘s appeal lies in its
extensive discussion of the Rule and Justice Scalia‘s light-hearted, and
realistic, example of the Rule‘s application involving a teenager whose
parents instruct him not to ―throw a party or engage in any other activity
that damages the house‖ while they are away for the weekend.6 Justice
Scalia‘s example is not only droll, but has provided litigants and courts
fodder with which to argue in favor of limiting the reach of modifying
clauses. Given the recent emergence of the Rule as a tool of statutory
construction and Barnhart‘s many citations, it seemed that an examination

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.

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of the Rule‘s historical application by the Court leading up to and including
Barnhart, Jama, and Hayes would be a worthwhile and enjoyable endeavor.
It is the author‘s hope that this Article will spur legislators, judges, and
attorneys to draft statutes, opinions, and briefs with a more scrutinizing eye
cast toward potentially ambiguous modifying clauses.

The Court‘s first reference to the Rule appeared in the matter of Sims’
Lessee v. Irvine in 1799.7 In Sims’ Lessee, the Court was called upon to
decide an ejectment action disputing title to Montour‘s Island,
Pennsylvania, located in the Ohio River. A jury had concluded that the
island was alternatively granted to Brigadier General William Irvine in fee
in 1783 and to one Charles Sims, as assignee of William Douglas,
sometime prior to General Irvine‘s payment to Pennsylvania.8 Addressing
the fee grant to General Irvine, ensconced in a law of Virginia dated
October 1779, Chief Justice Ellsworth construed the following passage in
the syllabus of the decision:

Be it enacted by the General Assembly, that whereas doubts have
arisen concerning the manner of proving rights for military service under
the proclamation of the King of Great Britain, in the year one thousand
seven hundred and sixty three, whereby great frauds may be committed:
Be it declared and enacted, that no person, his heirs or assigns, other than
those who had obtained warrants under the former government, shall
hereafter be admitted to any warrant for such military service, unless he,
she, or they, produce to the Register of the Land Office, within eight
months after the passing of this act, a proper certificate of proof made
before some court of record within the commonwealth, by the oath of the
party claiming, or other satisfactory evidence that such party was bona
fide an inhabitant of this commonwealth . . . .9

The Court held that when the Act speaks of ―the party claiming‖

it must, indeed, intend a party who can legally claim, but it by no means
describes who shall be a legal claimant: And when it speaks of ‗such
party,‘ the reference (which is not always to the next immediate
antecedent. 18 Vin. Abr. Hard. 77.) must, in order to preserve the sense of
the context, be applied to the done . . . duly entitled, according to the
requisites of the Proclamation and law.10

Chief Justice Ellsworth continued in a footnote that ―[t]he rule is, that
‗such‘ applies to the last antecedent, unless the sense of the passage requires

7. 3 U.S. (3 Dall.) 425, 443-44 (1799).
8. Id. at 435-44.
9. Id. at 432 (emphasis added) (italics omitted).
10. Id. at 443-44.

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a different construction.‖11 In its first appearance in an opinion of the
Court, the Rule is expressly recognized for its flexibility—that is, Chief
Justice Ellsworth indicated that the Rule is less a ―rule‖ than an aid in
construction.

Just under a decade later, Chief Justice Marshall refused to apply the
Rule in the case of Ex Parte Bollman,12 one of the most important decisions
in which the Rule has been referenced. In the case of two defendants who
had been imprisoned for treason, Ex Parte Bollman raised the question of
the Court‘s power to award a writ of habeas corpus.13 At issue was the
fourteenth section of the Judicial Act, which stated:

[A]ll the before mentioned courts of the United States shall have the
power to issue writs of scire facias, habeas corpus, and all other writs, not
specifically provided for by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable to the principles
and usages of law.14

In construing this section, Chief Justice Marshall ignored the operation
of the Rule, which would have had the limited operation of the modifying
clause ―which may be necessary for the exercise of their respective
jurisdictions‖ to the last antecedent ―all other writs, not specifically
provided for by statute.‖15 It had been ―urged, that in strict grammatical
construction, these words refer to the last antecedent,‖ and the Chief Justice
acknowledged that ―[t]his criticism may be correct, and is not entirely
without influence.‖16 However, the Chief Justice ultimately relied on ―the
true sense of the words‖ and ―context‖ in concluding that the modifying
clause applied to each writ mentioned in the construction, whether
expressly or in the catchall.17 As in Sims’ Lessee, the Bollman Court
recognized the Rule‘s flexibility, but ultimately rejected its application,
which would have had the effect of removing the power of the writ of
habeas corpus from the Court‘s jurisdiction.18

After Bollman, the Court did not use the Rule in any meaningful way
until 1895, when Justice Gray applied the Rule without comment in the
context of a criminal indictment in Batchelor v. United States.19 The Court

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).

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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.‖20 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.21 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,23 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
nearly three paragraphs before the general reference to ―territory.‖27

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.

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United States courts for acts of foreign vessels.28 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.29 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.32

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. § 69.35 The
Court applied the Rule to a provision that defined the term ―invoice‖ in
support of a claim of false invoicing of fur products.36 ―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

28. 248 U.S. 185, 195 (1918).
29. Id.
30. Id. at 196.
31. Id. at 204 (McKenna, J., dissenting).
32. Id.
33. 359 U.S. 385 (1959).
34. The Barnhart Court relied on Mandel Bros. ―because the provisions to be construed in
each case were strikingly similar in structure.‖ Barnhart v. Thomas, 540 U.S. 20, 26 (2003).
35. Mandel Bros., 359 U.S. at 389-90.
36. See id.
37. 15 U.S.C. § 69(f) (2006); Mandel Bros., 359 U.S. at 389.

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ground that a retail sales slip was not an ‗invoice‘ within the meaning of the
Act.‖38 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.‖39 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.‖41

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.44 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.45 Justice Marshall rejected this argument, noting that ―many
leading grammarians, while sometimes noting that commas at the end of a

38. Mandel Bros., 359 U.S. at 388.
39. Id. at 389-90.
40. Id. at 389; see 15 U.S.C. § 69(f).
41. Mandel Bros., 359 U.S. at 389.
42. 404 U.S. 336, 338-39 (1971).
43. Id. (alteration in original) (internal quotation marks omitted) (quoting 18 U.S.C. App.
§ 1202(a) (1970)).
44. Id. at 339-40.
45. Id. at 340 n.6.

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series can avoid ambiguity, concede that use of such commas is
discretionary.‖46

For much of the Court‘s history, therefore, the Rule has been
referenced mostly in passing, applied where it is convenient, and
disregarded where it is not. In 2003, however, Justice Scalia illuminated
the Rule in a lengthy discussion, which included a whimsical example of its
application in the context of a teenager who throws a party and/or damages
his parents‘ house while they are away.47 As noted above, Barnhart v.
Thomas has since become the seminal authority on the Rule and is perhaps
one cause of the recent emergence of the Rule in the federal courts. In
Barnhart, a social security claimant appealed the denial of her application
for disability insurance benefits and Supplemental Security Income on the
ground that the Administrative Law Judge (―ALJ‖) failed to consider that
opportunities to perform her previous work no longer existed in significant
numbers in the national economy.48 The district court affirmed the ALJ, but
the Third Circuit Court of Appeals, sitting en banc, reversed the district
court and held that the Social Security Act was unambiguous, and that the
ability to perform prior work disqualifies a claimant from benefits only if
such prior work is ―any other kind of substantial gainful work which exists
in the national economy.‖49 The statute provided:

An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy . . . .50

The Court reversed the Third Circuit, holding that the appellate court‘s
reading of the statute

is precisely contrary to—the grammatical ―rule of the last antecedent,‖
according to which a limiting clause or phrase (here, the relative clause
―which exists in the national economy‖) should ordinarily be read as
modifying only the noun or phrase that it immediately follows (here, ―any
other kind of substantial gainful work‖).51

Therefore, the Court concluded that the Social Security
Administration‘s construction was ―reasonable,‖ but declined to decide

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)).

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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.‘‖53
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.‘‖54 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 party—that was
most likely to cause damage and most likely to occur.55

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

52. Id. at 26.

53. Id. In concluding that the Rule is ―sensible as a matter of grammar,‖ Justice Scalia
invoked the words of Justice Thomas‘s opinion in Nobelman v. American Savings Bank, where the
Court rejected application of the Rule in the context of the secured and unsecured components of a
lienholder‘s claim on property subject to a Chapter 13 bankruptcy proceeding. Id. (citing
Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330 (1993)).

54. Barnhart, 540 U.S. at 27.

55. Id. at 27-8.

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Rule, choosing instead to explain it in simple terms. As discussed below,
Justice Scalia‘s explanation of the Rule has had a cascading effect on future
applications of the Rule by the Court.

Within two years of Barnhart, the Rule became the subject of its first
lively debate between majority and dissenting Justices. In Jama, Justice
Scalia invoked the Rule (and Barnhart) in rejecting petitioner‘s argument
that all potential countries to which an alien may be removed must
affirmatively accept that alien.56 The provision at issue stated, in pertinent
part, that:

(E) Additional removal countries.

If an alien is not removed to a country under the previous subparagraphs
of this paragraph, the Attorney General shall remove the alien to any of
the following countries:

(i) The country from which the alien was admitted to the United
States.

(ii) The country in which is located the foreign port from which the
alien left for the United States or for a foreign territory contiguous to
the United States.

(iii) A country in which the alien resided before the alien entered the
country from which the alien entered the United States.

(iv) The country in which the alien was born.

(v) The country that had sovereignty over the alien‘s birthplace when
the alien was born.

(vi) The country in which the alien‘s birthplace is located when the
alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the alien
to each country described in a previous clause of this subparagraph,
another country whose government will accept the alien into that
country.57

The question for the Court was whether the limiting phrase ―whose
government will accept the [alien into that country]‖ applied only to section
(vii) or whether that phrase applied to subsections (i) through (vi).58 Justice
Scalia rejected petitioner‘s argument and applied the Rule, concluding that
―[e]ach clause is distinct and ends with a period, strongly suggesting that
each may be understood completely without reading any further.‖59 This
construction, the Court reasoned, was to be contrasted with the construction

56. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 342-43 (2005).
57. 8 U.S.C. § 1231(b)(2)(E) (2006).
58. Jama, 543 U.S. at 342-43.
59. Id. at 344.

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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.62 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 by a
person similarly situated to a spouse, parent, or guardian of the victim.65

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.66 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

60. Id. at 344 n.4.
61. Id. at 355 (Souter, J., dissenting).
62. Id. at 355-57.
63. United States v. Hayes, 129 S. Ct. 1079, 1082 (2009).
64. Domestic Violence Offender Gun Ban of 1996, Pub. L. No. 104-208, §§ 101(f), 658 (a),
110 Stat. 3009-314, 3009-371 (codified as amended at 18 U.S.C. § 921).
65. 18 U.S.C. § 921(a)(33)(A) (2006).
66. Hayes, 129 S. Ct. at 1082.

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established beyond a reasonable doubt.67 ―Applying the rule of the last
antecedent would require us to accept two unlikely premises: that Congress
employed the singular ‗element‘ to encompass two distinct concepts, and
that it adopted the awkward construction ‗commi[t]‘ a ‗use.‘‖68 Rather,
Justice Ginsburg relied on ―other indicia‖ of the statute‘s meaning in
concluding that a ―domestic relationship‖ was not an element of the
offense.69

Chief Justice Roberts dissented, concluding that Justice Ginsburg‘s
construction would force the reader into an awkward reading:

The grammatical rule of the last antecedent indicates that the domestic
relationship is a required element of the predicate offense. . . . Pursuant to
that rule, the ―committed by‖ phrase in clause (ii) is best read to modify
the preceding phrase ―the use or attempted use of physical force, or the
threatened use of a deadly weapon.‖ By not following the usual
grammatical rule, the majority‘s reading requires jumping over two line
breaks, clause (i), a semicolon, and the first portion of clause (ii) to reach
the more distant antecedent (‗offense‘). Due to the floating ―that‖ after
―offense,‖ if ―committed by‖ modified ―offense‖ the text would read
―offense that committed by.‖70

Therefore, regardless of whether the Court applied the Rule or not, the
statute forced a similar syntactical nightmare, either the ―offense that
committed by‖ construction compelled by Justice Ginsburg or the ―use . . .
committed by‖ construction compelled by the Chief Justice. Because
§ 921(a)(33)(A) is not a model of good draftsmanship—indeed, it may be
better described as a masterpiece of obfuscation—the Rule provided little
assistance in its construction.

What have we learned? First, it is clear from cases like Sims’ Lessee,
Ex Parte Bollman, and Johnson v. Sayre that application of the Rule is
flexible, and that it is typically applied only where there is no
contraindication from legislative history or another source that the statute in
question is intended to convey a meaning different than application of the
Rule would permit. Indeed, the Rule is so flexible that calling it a rule at all
may be oxymoronic. Second, it is beyond cavil that the Court‘s use of the
Rule has increased over time, particularly in recent years. This increase has
likewise extended to the circuit courts, which have discussed the Rule as
many times in the almost six years since Barnhart as they did in the ten
years preceding it. As noted above, courts appear to be drawn to Barnhart

67. Id. at 1087.
68. Id. at 1086.
69. Id. at 1087
70. Id. at 1090 (Roberts, C.J., dissenting).

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2009] A RULE OF LAST RESORT 337

as a tool for arguing in favor of applying the Rule to ambiguous statutory
provisions. However, since Barnhart, the Rule has caused two major
arguments over its proper application, and has led majority and dissenting
authors to reach drastically different results.

Given what little assistance application of the Rule has provided in
these decisions, in part because the Rule is so malleable, the author wonders
whether the Court was not better off when the Rule was languishing in
relative obscurity. Because the question of whether to apply the Rule
essentially amounts to a coin toss, it seems entirely implausible to rely on it
as a method of inferring actual congressional intent or meaning. Rather,
where judicial construction of a statute may be reduced to a question of
whether to apply the Rule, it is reasonable to conclude that legislators likely
should have explored an amendment at the time of drafting or should
explore an amendment in the future. Finally, as mentioned above, the
Court‘s history of inconsistent application of the Rule, and the Rule‘s
ability to frustrate a drafter‘s intent, should serve as a warning to
lawmakers, practitioners, and jurists alike to avoid some of the pitfalls of
modifying clauses by formulating their writings in such a way that multiple
constructions are impossible and application of the Rule unnecessary.


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