Article by Martin H. Redish and Theodore T. Chung
If originalism [in statutory interpretation] retains no defenders in the academy, it seems only fair to ask how it could have remained a viable approach for the judiciary.
[A]ttempts to link the interpretation of statutes to the commands of an identifiable legislature are doomed. If we ever believed in the naive “faithful agent” model of statutory interpretation, we can no longer.
Within the past decade, statutory interpretation as an area of scholarly inquiry has experienced a significant revival. The contemporary debate, however, is anything but nostalgic. Instead, buoyed by insights derived from such fields as public choice theory and hermeneutics and responding to the perceived deficiencies of traditional interpretive approaches, scholars have flooded legal journals with proposed models of statutory interpretation. As evidenced by the quotations that begin this Article, originalism—the traditional and, until recently, relatively unquestioned approach to statutory interpretation-has now become something of an endangered species among commentators on the subject.
Premised on the notion that under our representative democracy Congress is the branch of government primarily responsible for policymaking, originalist interpretive models treat statutes as commands that emanate from the legislative branch. The judge's role as interpreter is limited to deciphering these commands and applying them to particular cases. However, originalism has come under attack from critics who assert that it is based on false notions of ascertainable collective intent, that it exacerbates the problem of anachronistic statutes, and that it does little to combat the “pathologies” endemic to the legislative process.
Posing the greatest threat to originalism are two diametrically opposed interpretive models: “new textualism” and “dynamic” statutory interpretation. New textualism, most closely associated with a number of influential and generally conservative members of the federal judiciary, has countered originalism with an approach that would-in all but a few extreme cases-limit the interpretive sources from which a judge could draw to the text of the statute alone. After all, it is argued, only the text of the statute has complied with the procedural requirements for enactment of legislation imposed by Article I of the Constitution-bicameralism and presentment. In a sense, new textualism has wedded a formalistic conception of the Constitution to the originalist belief in the primacy of the legislature in the policymaking process.
By contrast, dynamic interpretation, favored by a group of prolific and provocative academics, tends toward the opposite extreme. Dynamic scholars would, under certain and, arguably, far-reaching circumstances, allow an interpreting judge to consider not only the statutory text and the relevant legislative history but also nonlegislative, “outside” sources as well. Only by explicitly countenancing substantial judicial discretion in statutory interpretation, dynamists contend, will the impact of outdated or potentially harmful legislation be neutralized.
In light of the emergence of these and other alternative models of statutory interpretation, this Article examines whether originalism, premised as it is on what some perceive as either an overly formalistic conception of constitutional separation of powers or a naive an unrealistic perception of the legislative process, deserves to be saved from extinction. As this Article demonstrates, neither new textualism nor dynamic interpretation offers a satisfactory alternative to originalism from the perspective of both practicality and political theory. Although new textualism's concern for the statutory text and constitutional separation of powers is a laudable attempt to restore the balance of political power in what is fundamentally a democratic society, the theory nonetheless suffers from its self-imposed rigidity. To be sure, the text of a statute should serve as the primary source of its meaning. As this Article argues, however, text should not and, indeed, cannot serve as the exclusive source under many circumstances. By generally confining an interpreting judge to text, new textualism leaves an interpreter without guidance in the numerous cases when the application of text to a specific fact situation is ambiguous or unclear.
Dynamic interpretation, on the other hand, far from being too restrictive, is excessively expansive. Despite its claim that it carves out only a minor exception to the general rule of judicial deference to the legislature in the realm of statutory interpretation, dynamic statutory interpretation effectively represents a dramatic and pernicious reordering of our democratic form of government. In short, dynamic statutory interpretation would establish the judiciary as a largely unaccountable ruling elite, the virtual equivalent of philosopher kings. Robert Dahl has labeled judges operating under such a model “guardians,” empowered to pass judgment not merely on the constitutionality of legislative enactments but on their wisdom and morality as well.
The judiciary that dynamic scholars envision for purposes of statutory interpretation bears little resemblance to the judiciary posited by either new textualist or originalist commentators. Instead of deciphering and implementing the decisions of a coordinate branch, the judiciary, from the dynamist perspective, acts as an adjunct in the legislative process or, more precisely, a super legislature.
Underlying dynamic statutory interpretation, then, is an ominously antidemocratic conception of our system of government. Notions of separation of powers that typify traditional interpretive models are, in the eyes of dynamic scholars, impediments to good government. Indeed, dynamic scholars insist, the citizenry cannot afford to entrust its well-being to a Congress beholden to special interests. Because the federal judiciary remains insulated from special-interest and constituent pressures, dynamists further contend that it is the branch best suited to ascertain and protect the common good. However, by conferring on judges wide-ranging discretion to ignore what would otherwise be discernible legislative directives in favor of interpretations more consistent with their own notions of the common good, dynamic interpretation runs afoul of the normative political premise of self-determination that undergirds our representative democracy.
Although this Article ultimately rejects both new textualism and dynamic interpretation, it does not merely endorse the classical originalist models in their unadulterated form. Rather, this Article proposes its own alternative interpretive model, what we call “textualist originalism.” Textualist originalism shares classical originalism's and new textualism's purported commitment to the primacy of Congress in the policymaking process. Accordingly, textualist originalism seeks to confine the role of judges to the performance of what is largely an agency function.
Although textualist originalism, classical originalism, and new textualism all begin with the same set of assumptions concerning the judiciary's function in statutory interpretation, the three models differ significantly when it comes to interpretive methodology. If one assumes that an interpreting judge should respect the policymaking supremacy of Congress, there still remains the question of how best to go about according respect. As discussed above, new textualism attempts to do so by limiting the sources on which interpreting judges may draw largely to statutory text. Classical originalist approaches, on the other hand, would allow judges to examine legislative “intent” or statutory “purpose” in order to fashion an interpretive result that may conceivably conflict with even unambiguous text.
Textualist originalism, in contrast, represents a reaction to both the new textualist and originalist treatment of text. Realizing that text is the best, but not the only, evidence of a statute's meaning, textualist originalism would—unlike new textualism—allow judges, when necessary, to consult other legislative sources to inform statutory text. Because text is both the best evidence of legislative purpose and the only product of the Constitution's requirements of bicameralism and presentment, textualist originalism would not permit-as classical originalism might-clear text to be superseded or contradicted by other sources of statutory meaning. Textualist originalism thus mediates the methodological discrepancy between traditional originalism and new textualism by integrating and prioritizing the relevant sources of statutory meaning.
Pursuant to a textualist originalist analysis, an interpreting judge's inquiry may include the following elements: (1) examination of the statute's text; (2) examination of the statute's history in order to determine whether Congress has indicated a preference with regard to the specific issue before the court; and (3) an attempt to determine the purpose behind the statute by consideration of the statute's contextual place in and effect on the legal topography. The ordering of these sources is deliberate, reflecting a hierarchy based on intended relative importance: the text is the primary source of statutory meaning, followed by legislative history, and finally, perception of legislative purpose. Thus, short of a finding of a scrivener's error, unambiguous text should never be overridden by either history or purpose.
If a judge, employing a textualist originalist inquiry, discerns an underlying substantive legislative directive, that directive must be respected. However, Congress may on occasion choose to delegate discretionary authority to the judiciary to fashion its own substantive common-law principles. The extent of this authorization will depend on the nature of the statute in question. For instance, the greater the generality of the statutory language, the stronger the inference should be that the statute carries with it implicit congressional authorization for a judge, in traditional common-law fashion, to interpret it in light of contemporary circumstances. Thus, textualist originalism would require that judges examine statutes to determine not only what Congress has said about the substance of the statute but also whether Congress has issued instructions that can help guide the judge in the process of interpretation.
Textualist originalism, then, represents a hybrid model that links the normative premises that underlie originalism and new textualism with the concern for interpretive flexibility that informs dynamic statutory interpretation. Textualist originalism recognizes that a grudging and rigid interpretive approach may ultimately do violence to the very legislative expectations it seeks to effectuate. Moreover, unlike dynamism, textualist originalism does not seek substantive flexibility. Dynamic scholars would grant a judge wide latitude in deciding what interpretive result would best promote the public welfare, regardless of discernible congressional input on the matter. The flexibility that textualist originalism offers, however, is more methodological than substantive. Without usurping Congress's policymaking authority, a judge, under textualist originalism, could tailor an interpretive inquiry, while bearing in mind the need to construe statutory text to attain specific legislative purposes.
Part II of this Article briefly reviews the interpretive models that employ as their fundamental premise the superior lawmaking function of the legislature: originalism and new textualism. In Part III, this Article discusses and critiques dynamic theories of interpretation. Concluding that neither new textualism nor dynamism constitutes an adequate substitute for originalism, this Article then explains and defends its own suggested interpretive theory, textualist originalism, in Part IV.
About the Author
Martin H. Redish. Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University. A.B., University of Pennsylvania, 1967; J.D., Harvard University, 1970.
Theodore T. Chung. Judicial Law Clerk to the Honorable Ralph B. Guy, Jr., United States Court of Appeals for the Sixth Circuit; Member, Illinois State Bar Association. A.B., Dartmouth College, 1989; J.D., Northwestern University, 1993.
Citation
68 Tul. L. Rev. 803 (1994)