Elements of Law 3.0 Notes and Reading IV-C (How Courts Engage With Law: Theories of Judicial Interpretation)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the another part of section IV of the materials:  IV.C.The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation.   Comments and discussion most welcome.

The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

IV.C. The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation.

Notes for

C. How Courts Engage With Law: Theories of Judicial Interpretation


--Yule Kim, “Statutory Interpretation; General Principles and Recent Trends,” Congressional Research Service Report for Congress Order Coder 97-589 (Aug. 31, 2008).

--Richard Posner, Statutory Interpretation—In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983) (READ PARTS II and III)

1. Theory and statutory interpretation
--Philip P. Frickey, "From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation,” Minnesota Law Review 77:241-267 (1992).
2. The Role of Text and Precedent
--John F. Manning, "Textualism and the Equity of the Statute," 101 Columbia Law Review 1 (2001) (READ pp. 1, 3-7, 16-22).
3. The Controversy Over Resort to Extrinsic Sources
--Stephen Breyer, "On the Uses of Legislative History in Interpreting Statutes," 65 S. Cal. L. Rev. 845 (1992).

We have been considering the foundations for the peculiar role of courts under the American politico-judicial system. Those foundations, of course, cannot be understood without the materials we considered in Parts I and II of these readings. To  a great extent, the role of the courts in the American system is substantially connected, in part, to the American experience during the great formative period of English legal and political development centering around the debates from the time of the English Civil War and the settlement of the Glorious Revolution, to the rise of notions of Parliamentary supremacy in the colonial period (e.g., Kevin Phillips, The Cousins' Wars: Religion, Politics & the Triumph of Anglo-America (New York: Basic Books 1999)). As Dicey explained the concept more than a century after the founding of the Republic,

Parliament means, in the mouth of a lawyer (though the word has often a different sense in ordinary conversation), the King, the House of Lords, and the House of Commons; these three bodies acting together may be aptly described as the “King in Parliament,” and constitute Parliament.

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) [1915] (Chapter I: The Nature of Parliamentary Sovereignty)).

These formative political experiences were fused with a long tradition of common law and legislative instrumentalism. It was within a context in which law was both embedded within the state and yet apart from it, and in which courts  both described and applied common law and made sense of and applied legislation (and administrative regulation).  The understanding of the traditional judicial function within common law cultures--and the granting of the judicial power to the federal courts within the general government of the United States--made the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) plausible, even if controversial, and made the decision in Cooper v. Aaron, 358 U.S. 1 (1958) more controversial and less plausible, especially among traditionalists. The former case, in a sense, did no more than advance trends in English jurisprudence from the time immediately before the English civil war--holding public entities to the scope of their jurisdiction and policing their own jurisdictional limits (applying only "good" law to disputes before them). The later appeared to seek to extend the reach of judicial opinion beyond the scope of their authority, as cases, and to advocate for them a more distinctively legislative or regulatory character.  It was that distinction that then Attorney General Meese ("The Law of the Constitution,"  Tulane Law Review 61:979 (1987)) over argued in his well known argument from the 1980s.  It is true to judicial cases are not legislation, even when they purport to hold a statute invalid as beyond the power of the enacting legislature.  At the same time, such judgments remain authoritative within the judicial sphere, as case law that may be applied by sister courts and must be applied by inferior courts, though they may be less so int he administrative and legislative spheres.  Thus, while the holding in Marbury in a strict sense applies only to the parties to that case, the holding of Marbury would be treated as precedent by courts considering similar cases thereafter.  Where the issue touches on constitutional concerns, only the courts, or the people, and not congress or the president, have the power to overturn judicial constitutional glosses.  (Dickerson v. U.S., 530 U.S. 428, 437 (2000) (Congress may not overturn a judicial constitutional gloss by legislation).    

Today we consider further one of the most important issues that touch on the judicial power--the methods courts have adopted to legitimate their authority, at least to the extent drawn in cases like Marbury, and to speak authoritatively in all cases , that is to resolve disputes in ways that litigants--winners and losers--are willing to respect and implement. It is to the methodologies of juridical authority, and the quite specific language of judicial engagement by lawyers, that the student will consider in some detail over the next several classes. (e.g., Larry Catá Backer, “Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges“, William & Mary Bill of Rights Journal 12(1):117-178 (2003)(juridical authority and the cultivation of the techniques of neutrality)).  The development of a palette of legitimating techniques now mark the practice of judges and constitute the language within which the business of the courts is undertaken.  These techniques serve as the lubricant of rule of law systems, detached from yet interrelating with the state, by enhancing the ability of judges to avoid the appearance of arbitrary decision making.  (e.g., Learned Hand, "How Far is a Judge Free in Rendering a Decision?, in The Spirit of Liberty 103 (I. Dilliard 3rd ed., 1960 (1935))) That enhancement is bound up in the techniques of common law in two respects.  The first is that courts are bound to apply the aggregated wisdom of courts expressed in opinion (or the text of the legislation that applies).  Thus arbitrariness and personal predilection is at least constrained because judges apply the collective preferences of courts rather than their own in constructing standards.  Second, errant judges may be disciplined through appellate review--again the application of collective will to constrain individual approaches to dispute resolution.

While the cases themselves provide the techniques, especially the rhetorical and dialectical techniques, for legitimating discourse, the language of the courts in interpreting statutes presents distinct problems. The late 20th century produced a legal environment in which much that passed for law was grounded in statute and regulation, rather than in common law. (E.g., Guido Calabresi, A Common Law for the Age of Statutes (Union NJ: LawBook Exchange, 1999 (1982)).  The readings for this section lay the context of the problem of statutory interpretation as both theory and method, and point to the techniques and general framework within which courts interpret statutes.

Statutory interpretation techniques in the contemporary United States  derive essentially from formalist and functionalist approaches.  Formalist approaches focus on the text of the statute or constitutional provisions (or the administrative regulation) at issue in a dispute brought before the courts. Functionalist approaches focus on the objectives of the statute or constitution or administrative regulation at issue.  Restated in the language of contemporary American discourse, legitimating techniques of statutory construction are grounded either in text or intent.  But both textualism and intent based approaches to statutory interpretation are both shorthand for a number of sometimes inconsistent techniques, and each might be understood as exhibiting weaknesses as well as strengths.  Recall, though, that the point of these techniques and the embrace of formalism or functionalism in the form of a focus on text and intent, is meant to provide a structural framework for implementing rule of law in the work of the court by seeking methods of dispute resolution involving statutes that separate the individual judge from the decision (and thus seek to constrain the incentives for arbitrary judgement by courts and increase the deference to the discretion of legislatures and administrative units to fashion law to the extent they are empowered) and to provide the judiciary with a dense network of decision and decision disciplining structures within which cases can be made predictable and consistent.

Textualism starts with text.  At its most specific, simple textualism focuses on the specific language of the text at the heart of a dispute--the words of a statutory provision, constitutional section or administrative regulation.  To resolve ambiguity or fill gaps requires no more than the application of sound rules for reasoning through words.  These have been organized into a system of guidance commonly references as the currently much maligned canons of construction. These include simple rules for the construction of word meaning--an essentially semiotic experience grounded in the language of legal grammar.  But they also include some substantive canons--rules of construction in criminal cases, rules of construction to avoid incoherence or constitutional constraints and the like. There are a number of problems with this approach of course.  Words have meaning only in context; legislative grammar may be subject to errors, and words changer meaning over time.  We consider these canons in more detail below.  A more holistic textualism would seek, sometimes in addition to the application of the rules of simple textualism, to read meaning into text by contextualizing the key text within the provisions in which it is located--either the section or chapter of the materials or the statute as a whole.  The idea here is to provide an anchor for the application of accepted rules for extracting meaning within the larger text in which the provision is found.  At its most general textualism can be come structural.  Structural textualism takes holistic textualism one step father--it seeks means meaning by deriving from the text as a whole those principles which ground the statute and then apply those principles o seek to resolve the ambiguity in the specific text in dispute. Here textualism is used as a springboard from which legal principles are derived (principles still tied to text) but which now autonomous and superior to the words in the ext themselves, can be used to extract meaning from specific provisions in ways that harmonize the text of any portion of the statute with the overarching principles of the text itself.  Both structural and holistic textualism sufer similar criticisms--they are viewed as veils behind which courts may impose their own personal approaches to law without constraint.  We will consider these approaches in more detail when examining techniques of constitutional interpretation. 

Intent based approaches mirror textual approaches but the focus is different.  Rather than starting with text, one starts with the intent, or the objectives, of the legislating body.  Clearly intent and objectives may not always be the same thing, a cause for some criticism of the approach.  Intent can focus solely on the drafters of the statutes, constitutional provision or administrative regulation. Objectives based approaches may focus as much on the nature of the problem against which the statutory effort was directed as it focuses on the personal intention of those involved in the drafting of the provision.  In either case, the object, though, is to align the resolution of the statutory ambiguity or gap with the intent or objectives at the heart of the provision, that is the intent of the drafters.  At its simplest, original intent or objectives focus on the specific provision in need of construction. Sometimes a more holistic approach is used, in which intent or objective is derived from that extracted from discussion of the provision or statute as a whole.  At its broadest, and like structural textualism, intent or objective can serve as the basis for extracting a general principle which can then be applied to construe the specific provision at issue.  But unlike textual approaches, the focus here is on the construction of intent or objective, and through them text, rather than starting from text itself.  For this purpose, the courts must seek authoritative sources for intent or objectives.  Here is where this technique comes under some attack.  Fir it is not clear which sources are the most authoritative or authoritative enough.,  Usually recourse is made to legislative history, but these tend to privilege the sometimes bare majorities that succeeded in passing the statute with little attention paid to those who lost.  And it tends to privilege only those discourses that have been memorialized, sometimes after the fact, rather than those who have been lost for failures of preservation. Where the focus is on objectives, courts have even more freedom to construct the shape of the problem that the statute was meant to address, although here too, purpose clauses in statutes are sometimes helpful. However focused, though, these intent or objectives based techniques, like those of textual analysis, cannot produce any assurance of absolute fidelity to whatever factor is privileged in judicial analysis. 

There is also a distinction between intent based approaches and original understanding.  Originalism focuses on the original understanding of either text or objectives at the time of the making of that provision. It can be understood in two forms, original understanding and original intent.  The former touches on the common understanding of society at the time of the enactment of the provision in question. In this form it can be understood as a species of textualism, since the object usually is to authoritatively fill words at issue with meaning from a source other than the predilections of a judge.  The later touches on the intent of the framers of that legislation, and in this form constitutes a species of intent based statutory interpretation. As original understanding, it is a technique designed to privilege, in a formalist sort of way, the importance of custom and tradition, by contextualizing a provision within the specific time and culture within which it was made and vesting that time and place with its own legislative power.  One of its principal proponents has been Antonin Scalia, (e.g., Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989))  In its effect, originalism in the form of original has been criticized as presuming that a statute incorporates within it the place and culture of the time in which it was enacted.  It does so for the purest of reason--to strip later generations, and particularly later generations of courts, form reading statutes in the present tense--a hallmark, we have come to understand, of common law judicial sensibilities. Instead, it treats statutes as fundamentally incompatible with common law sensibilities and adopts a somewhat rigid premise that the legislature intended to legislate substance, time place and culture with every regulatory effort. Additionally, originalism suffers from a problem of authority.  In a large and complex society, it is not clear always whose original understanding is to be given greater weight.  That itself creates the sort of problems of authority, and the possibility of abuse, that originalist sometimes use to attack intent or objectives based functional approaches.  Thus for example, for most of the history of the Republic, originalism would favor the opinion of men, white men with property and education, far more than the vast majority of people, women, the poor and for a time slaves, whose own original understanding might have been substantially different than the pantheon of sources that have been given pride of place in this sort of analytical discourse.  Despite this, originalists tell us, is the only means of protecting statutes from the depredations of interpretation--because any interpretation that is not mechanical is legislative in character.  And the assertion of legislative power is specifically assigned only to Congress.   

But textualism and intent based techniques have traditionally taken specific forms int he United States, many of which have come under substantial attack form jurists, academics and politicians. The first reading, Yule Kim, “Statutory Interpretation; General Principles and Recent Trends,” Congressional Research Service Report for Congress Order Coder 97-589 (Aug. 31, 2008), "identifies and describes some of the more important rules and conventions of interpretation" (Ibid 1) by the federal courts.

In analyzing a statute’s text, the Court is guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context in a manner that furthers statutory purpose. . . . The Court frequently relies on “canons” of construction to draw inferences about the meaning of statutory language. . . . Not infrequently the Court stacks the deck, and subordinates the general, linguistic canons of statutory construction, as well as other interpretive principles, to overriding presumptions that favor particular substantive results.(Ibid).

Kim notes that within the constellation of canons of construction, the courts tend to start with the language of the statute and will proceed no further than the text of the statute to the extent that this reading yields no ambiguity under the so-called "plain meaning" rule.  (Ibid., 2). Another foundational rule applied is the "harmonious construction" rule, that statutes should be read "as a harmonious whole, with its various parts being interpreted within their broader statutory context in a manner that furthers statutory purposes" (Ibid., 2-3). Kim acknowledges in that discussion a fundamental character of the canons--they may but need not be applied. (Ibid). This is especially true of what are described as "general canons."(Ibid., 4-17). 

Kim then suggests the rules that may provide guidance for ignoring or subverting the canons in specific instances.  "There are a number of instances in which the Court stacks the deck, and subordinates the general, linguistic canons of statutory construction, as well as other interpretive principles, to overriding presumptions that favor particular substantive results." (Ibid 17-31). But it is easy to misinterpret this stance.  What Kim appears to mean is that the canons of statutory construction must themselves give way to the legal principles on which both statutes and the judicial project necessary rest, some of which are derived form the Constitution, though some are more prudential in character. (Ibid., 17-18). Some of these prudential presumptions have become less powerful in contemporary jurisprudence (e.f., deference to common law, narrow scope of federal pre-emption).  Others remain important (presumption of no implied waivers of sovereign immunity, no implied retroactive application of statute, avoidance of constitutional issues in construction, disfavor of extraterritorial application of U.S. law, and the presumption in favor of administrative action on review, presumption against repeals by implication) (Ibid., 18-28).

Kim then describes what he terms miscellany, judicial practices that have come to have some consistent application in cases, everything from the legal effect of preambles to the effect of findings and purposes sections of statutes, savings clauses). (Ibid., 28-37).  The object is not so much to make a case for the great number of presumptions and judicial interpretive habits highlighted as it is to describe the scope of that universe.  Kim ends with a discussion of legislative history and the controversies over its use, in the context of the application or avoidance of the "plain meaning" canon.

Reference to legislative history for background and historical context is commonplace. . . . A distinct but related inquiry focuses not on the explanations that accompanied committee or floor consideration, but rather on the sequence of changes in bill language. . . . Explanatory legislative history is also consulted on occasion for more narrowly focused explanation of the meaning of specific statutory language that a court believes is unclear. Reliance on legislative history for such purposes may be more controversial, either because contrary indications may be present in other passages of legislative history, or because the degree of direction or detail may be an unwarranted narrowing of a more general statutory text. (Ibid., 41-44).

Kim also discusses the use of the more controversial post-enactment legislative history in the cases, as well as subsequent legislation, reenactment, acquiescence, and signing statements by presidents, methods for weighing the authority of statements (the isolated statements rule). (Ibid., 44-50).  Taken together, Kim does us a great service.  Kim presents us the state, somewhat disordered but substantially organized, of the galaxy of canons of construction of statutes and their use as guidelines by the courts.  More importantly, Kim suggests that the canons are not merely a "secret knowledge" of the courts.  Rather, the canons, by their very exposure, become elements in the political process of the passage and implementation of legislation--which is always engaged in the shadow of the canons.   What becomes clear here is that, for better otr worse, and at least within the actual business of the courts, and of the legislatures and ecxecutiev officials with which the courts interact, the canons of construction arer alive and well, even if to some extent somewhat disorderd.

This state of affairs, though, has rankled the academic intelligentsia for some time.  One of the most elegant exponents of academic anomie is Richard Posner. The second reading, Richard Posner, "Statutory Interpretation—In the Classroom and in the Courtroom," 50 U. Chi. L. Rev. 800 (1983) sets the context.  In this reading, Posner focuses on two points.  The first, that law schools ought to do a better job of teaching legislation is as true, perhaps, in the current age as it was nearly a generation ago in 1983. The second, and for our purposes here the more interesting point is that the traditional guideposts for statutory construction--the canons of construction including the approaches to statutory construction identified in the Yule Kim readings--are of little use and that there must be a better and more authoritative way for judges to read statutes. Posner starts with a premise:

The canons of statutory construction—for example, one starts with the language of the statute; repeals by implication are not favored; penal statutes are to be construed narrowly and remedial statutes broadly; expressio unius est exclusio alterius —occupy a kind of legal demimonde. To exaggerate slightly, it has been many years since any legal scholar had a good word to say about any but one or two of the canons, but scholarly opinion—and I include not just the views of professors but the views expressed in nonjudicial writings of distinguished judges such as Frankfurter and Friendly—has had little impact on the writing of judicial opinions, where the canons seem to be flourishing as vigorously as ever. . . . But judicial opinions continue to pretend far more often than they should that the interpretation of statutes is the mechanical application of well understood interpretive principles—the canons—to legislative materials. (Ibid., 805-06).

He reminds the reader of the criticism of the canons of construction so effectively leveled against them  by Karl N. Llewellyn, The Common Law Tradition 521-35 (1960) (the absence of a rule about choosing applicable canons make sit possible to find for every canon there is an equal and opposite canon) (but see the defense of canons in the face of potential inconsistency in Kim, supra, pp. 4-5).  But Posner argues further that most of the canons are also wrong.  He rejects four defenses based on the functions of canons of construction: (1) that they serve sometimes as codes that Congress uses when they draft legislation (Posner suggests this is just not true); (2) that they are common sense  guides to interpretation (Posner rejects the notion that canons serve even as flexible rebuttable presumptions of interpretation); (3) that they provide a useful structure for constraining judicial discretion (Posner argues that the canons actually encourage the opposite of constraint); and (4) that canons  limit the delegation of legislative power to the courts, that is that the canons force the Congress to draft their legislation acrefully against the canons (Posner argues that the canons as a whole do not stand for some  general principle of separation of powers and limited government). (Posner, supra, 806-807). Not everyone agrees (e.g., Andrew C. Spiropoulos, "Making Laws Moral: A Defense of Substantive Canons of Construction." Utah Law Review (fall): 915–63 (2001)(canons of construction as a useful means of permitting judges to use extrinsic principles to render sound statutory constructions while confining judicial discretion to preserve its legitimacy)).

Posner then considers his critique against foundational canons.  The first is the so-called plain meaning rule.

Offered as a description of what judges do, the proposition is false. The judge rarely starts his inquiry with the words of  the statute, and often, if the truth be told, he does not look at the words at all. This is notoriously true with regard to the Constitution. More often than not, briefs and judicial opinions dealing with free speech, due process, the right to assistance of counsel, and other constitutional rights do not quote the language of the applicable provision—and not because all concerned know these provisions by heart. The constitutional provisions are in reality the foundations, or perhaps in some cases the pretexts, for the evolution of bodies of case law that are the starting point and usually the ending point of analysis for new cases. (Ibid., 807-808).

The same, Posner suggested, applied to statutes, offering as an example the Sherman Act. (Ibid).  What the canon reduces to, Posner suggests, "what really is intended is that the language of a statute be deemed the most important evidence of its meaning—which it normally is—or at least indispensable evidence—which it always is." (Ibid., 808).  It is not clear, though, that what Posner has managed is so much a critique of the canon as the conformation that the canon itself does no more than what it was meant to do--draw a general and imprecise direction for analysis and a reminder of the privileged position of the text of a statute or constitutional provision.  It might be as possible to suggest that his critique fails of its own purpose by suggesting that canons operate as failed rules and that judges do not follow the canon in a precise and ironically formalistic manner. Likewise his critique of the canon--"remedial statutes are to be broadly construed" (Ibid, 808-09)-- that it can be used to avoid legislative intent and the realities of the legislative process, asks both too much of the judge (who is expected to divine the nuances of legislative compromises unspecified in the statute) and too little (the judge defer the juridical function to the legislature on some sort of implied hierarchy model), especially when combined with the critique against the use of postenactment legislative materials in statutory interpretation (Ibid 809).  Similar critiques are offered for other canons because they rest on an unrealistic view of the political process (that the interpretation of a statute by an administrative agency is entitled to great deference) (Ibid 810-11); or because they appear to impute omniscience on Congress (that every word of a statute must be given significance, or that repeals by implication are not favored; that re-enactment of a statute without change incorporates prior judicial construction; and expresio unius est exclusio alterius) (Ibid., 811-14; for an interesting consideration of the way that the approach to this canon has changes consider Clifton Williams, "Expresio Unius est Exclusio Alterius," Marquette Law Review 15:191-196 (1931)).

Posner has better things to say about three other canons, but only because they might express congruence with broader constitutional principles, separation of powers, due process, . The first is that penal statutes should be narrowly construed as an expression of due process principles.  (Ibid., 814-815).  The others are that statutes should be construed to avoid invalidation or constitutional infirmity as a buffering device to protect the institution of judicial review (Ibid 815). But these can all be collapsed into one canon, Posner argues, the rest discarded.  Therefore, he argues, the canons themselves promote the sort of judicial activism that brings discredit to the courts and reduces their legitimacy as centers of authoritative interpretation and application of statutes (whatever their remaining authority under common law).

Posner offers, as an alternative to the canons of construction, not an algorithm but "an attitude, or maybe a slogan."  (Ibid., 817).

I suggest that the task for the judge called upon to interpret a statute is best described as one of imaginative reconstruction. The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar. (Ibid., 817).

Posner offers this approach in opposition to another approach that also rejects the value fo the canons and seeks a "new way" toward preserving the legitimacy of the judicial function in interpreting statutes.  This alternative approach, dynamic statutory constriction, also emerges from the legal academy. William Eskridge, "Dynamic Statutory Interpretation", University of Pennsylvania Law Review 135:1479-1555 (1987); also Guido Calabresi, A Common Law for the Age of Statutes (Union NJ: LawBook Exchange, 1999 (1982)).  The approach encourages judges to develop their own common law of statutory interpretation by abandoning a formalist and artificial search for intent when faced with statutory ambiguities and instead to extract and apply policy to  construe statutory ambiguities and lacunae.  In effect, these argue for a sort of functionalism, but one not tied to the search for any connection to legislative "intent."   Legitimacy would proceed from the application of policy rather than the individual desires and agendas of the judge and disciplined by the community of judges within which such decisions are made and themselves judged on appeal and by acceptance or rejection when considered for application by other courts.

It is perhaps in this sense that such approaches, including Judge Posner's, can be understood as grounded in the same sensibility--one that can trace itself back to the common law cultures of courts in the United States.  Legitimacy and authority, whatever the methodology, is at its core based on the independence of the judiciary, and the effectiveness of their ability to police themselves, rather than on the specifics of a "right" or wrong" approach  statutory construction.  Understood thus, the canons, or the approach of Judge Posner, or even that of dynamic statutory interpretation, are equally valid.  Indeed, the search for the "best" methodology is less relevant to the courts than to the academics on the search for which careers are made and fame assured (at least with people with political and ideological ambitions, off which they are always an abundance it seems).  What emerges an critically important, though, is the self-referencing and autonomous institution of the courts and the integrity of a process of judging and interpreting that is not dependent on the influence or power of outsiders but which may rely on the inner logic of the courts, well disciplined and uniformly applied. It is not so much the method, as methodological integrity that is critical to legitimacy; it is not the search for the "best" approach that is vital but the protection of a communal judicial web of self reinforcing and institutional principles designed to separate the individual judge from  law and the resolution of the dispute on which the authenticity of individual judicial performance is grounded.  Every age has its own sense of which set of methodologies best suits it and its self conceits, and lawyers must master the methodologies of the moment, and may, like our academic colleagues, champion one or another alternative not now in fashion.  But it is to the protection of the institution of the judge and the protection of the assertion of the judicial power, bound in law that remains connected to yet autonomous of the state, that continues to serve as the real lynchpin of judicial integrity and the stability of the judicial power to "say what the law is." And this last point is as old, in the West as the Institutes of Justinian from which we started our exploration of American legal theory (Elements of Law 3.0: Notes for Readings I-A (What is Law? Introduction: The cast of characters, institutions and forms); Reading Justinian's Institutes).

It is in this context that the remainder of the suggested readings may be usefully engaged. The first, Philip P. Frickey, "From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation,” Minnesota Law Review 77:241-267 (1992), considers the role of emerging theoretical approaches in statutory construction.  Frickey well describes the genesis of the contemporary controversies over statutory interpretation as arising form a reaction to a century's worth of increasingly mechanical formalism, a formalism that more and more evidenced a wide gulf between the application of formal rules and text, on the one hand, and the functional objectives of the statutes, on the other. Courts in the quest for legitimacy were increasingly sacrificing their relevance in ways that ironically also threatened the legitimacy of their role within the American polity. (Ibid., 248-250). He describes the revival of academic interest in the theory of statutory interpretative int he 1980s with Richard Posner (imaginative reconstruction), Frank Easterbrook (literalism) and Antonin Scalia (literalism without legislative intent; the new textualism)(Ibid., 250-255). What made these people important was not si much their academic credentials so much as their appointments to the federal bench from which they could turn theory into practice and thus influence the community of judges. That, of course, may explain why the so-called new textualism is more influential that Professor Eskridge's dynamic statutory interpretation.  The approaches like those of dynamic statutory interpretation still awaits a strong and sustained academically oriented advocate on the bench (though consider the role of Justice Stevens (Ibid, 265-66). Frickey then considers this new textualism.  He creditis and fauklts it for its strongest characteristic, "its rigidity." (Ibid., 258). By rejecting the value of intent--of purpose--in enacting legislation (as an essentially legislative function alien to the judicial role) it might offer a return to certainty but also to irrelevance. For Frickey, perhaps its most valuable consequence has been that it has sparks renewed academic interest in theories of statutory interpretation, including his own (Ibid., 261-262). He correctly notes, as he concludes, "the dispute about statutory interpretation transcends the law schools, and even the legal community, and appropriately belongs int he political marketplace of our society." (Ibid., 267).  Yet that position, taken too far, would strip the judiciary of its traditional role by reducing its autonomy and reconstructing it as entirely a creature of state, and with it, of the law of the institutions of government.  But that, also would appear to betray a fundamental understanding of the ordering on which the Republic was founded and pose challenges to the autonomous integrity of the courts. 

The second, John F. Manning, "Textualism and the Equity of the Statute," 101 Columbia Law Review 1 (2001), considers the role of text and precedent, that is the relationship between statutory and judicial meanings. Manning reaches back to Anglo-American common law culture and the doctrine of the equity of statute, a doctrine that treated atexual, purpose based interpretation of statutes, to argue that while this doctrine was viewed as an inherent attribute of judicial authority, it did not survive the transition to Constitutional government in the United States at the end of thew 18th century.  Rather, Manning argues, the formation of the Republic represented a definitive break with the common law and an embrace of a faithful servant theory. This faithful servant theory suggested that courts did not stand apart from the state nor that law was autonomous of the legislatures that represented popular power.  Rather both were subordinate to and bound to merely apply the will of the  masses as articulated by its representatives in the state.  This Manning argues, ids all to the good--faithful servant theories will not lead to the sort of rigidity criticized for a century before this writing nor in detached literalism.  My sense is that this view of the nature of the judicial power is in part quite correct, but as we have seen in our earlier study, only a particular picture of the American reality after 1789.  It is true enough that there is a strong strain of "faithful servant" theory at the core of the organization of the general government.  But the incorporation of this view did not necessarily either eliminate the earlier common law view, at the core of the English experience of the 17th century and so influential in the Wars of Independence, or make the application of the earlier rule impossible.  It is also true that the English practice of the equity of the statute did not carry over unchanged within the American judicial context.  To that extent Manning is quite correct.  But centuries of American judicial construction of elaborate rules for the distilling of intent--that is of statutory object--and of giving it effect, attests to the reality that however one chooses to identify the practice, it remains a very real part of the judicial experience, even in the face of the temptation to interpret text of itself.  Rather, the American system appeared, as it has in so many other instances, absorbed both traditions and has sought to apply them simultaneously ever since.  Efforts to harmonize them have neither been wholly successful nor entirely abandoned.  Thus, to understand the judicial power of the United States as merely one that is located within the state rather than also existing autonomously of it within a judicial body whose primary function is to serve law systems and not the state   and its apparatus, is to over simplify the conceptual reality of the judicial project and its role in statutory interpretation.

The last considers, Stephen Breyer, "On the Uses of Legislative History in Interpreting Statutes," 65 S. Cal. L. Rev. 845 (1992), considers the difficult issue of extrinsic sources in statutory interpretation. He sets for himself the task "to defend the classical practice and convince you that those who attack it ought to claim victory once they have made judges more sensitive to problems of the abuse of legislative history; they ought not to condemn its use altogether. They should confine their attack to the outskirts and leave the citadel at peace." (Ibid., 847).  His arguments are predominantly pragmatic rather than theoretical. They rest on two assumptions:  First that courts function in part as administrative institutions.  Second that law is itself a human institution the object of which is to serve human or societal needs rather than its own. (bid). Grounded in functionalism, his arguments easily follow:  Legislative history, when not abused, can be useful.  It can be used to avoid absurd results (Ibid., 848-849); it may be used to correct obvious drafting error (Ibid., 850); and it can be used to give effect to specialized meaning (Ibid., 851-52).

But the trick is to identify a reasonable purpose--that is judicial legitimacy is furthered when the courts used  techniques that do not suggest an abuse of power or the use of the cover of the judicial power to further arbitrary results.

How does a court determine the purpose of a statutory phrase? Sometimes it can simply look to the surrounding language in the statute or to the entire statutory scheme and ask, “Given this statutory background, what would a reasonable human being intend this specific language to accomplish?”Often this question has only one good answer, but sometimes the surrounding statutory language and the “reasonable human purpose” test cannot answer the question. In such situations, legislative history may provide a clear and helpful resolution. (Ibid., 853-854).

For Justice Breyer, the principle evil of literalism is the possibility is its ability to increase rather than reduce friction among the branches precisely by relying on text to produce rifts between congressional objectives and the results of reading congressional texts literally,. (Ibid 855-56). But that leaves a large problem--how to choose among reasonable interpretations of politically controversial statutes (Ibid., 856-861). 

In sum, these five examples identify five different circumstances in which courts might turn to legislative history for help in interpreting a  statute: (1) avoiding an absurd result; (2) preventing the law from turning on a drafting error; (3) understanding the meaning of specialized terms; (4) understanding the “reasonable purpose” a provision might serve; and (5) choosing among several possible “reasonable purposes” for language in a politically controversial law. The first three are not very controversial. The last two are controversial. The last two examples suggest, however, how in certain contexts reference to legislative history can promote interpretations that more closely correspond to the expectations of those who helped create the law (and whom the law will likely affect). To that extent, its use seems likely to promote fair and workable results. (Ibid., 860-61).

Breyer acknowledges but rejects the criticisms of the use of legislative intent--its lack of utility, constitutional arguments (separation of powers), and problems of finding intent, the failures of experiences elsewhere, and the limited availability of legislative intent sources. (Ibid., 861-869). He ends by offering three institutional reasons supporting the continued use of legislative hsitroy to discern legislative intent in statutory interpretation: "First, when existing canons conflict with each other they fail to offer much guidance. . . . Second, the origins or continued justifications for some of the canons that the Supreme Court uses seem obscure.  . . . Third, can the Court legally adopt new up-to-date canons." (Ibid., 869-71).  He urges that the existence of abuse of doctrine is not necessarily a basis for abandoning it rather than for protecting its integrity better.

Taken together, the readings suggest the contours of the the scope of the issues of statutory interpretation in U.S: courts.  It is a complex matter involving judicial culture, social and political transformation, the transformation of the state and its taste for statutes, the increasing remoteness of the common law origins of the judicial role in a world in which the forms of that practice persist even as its substance fades, and the overarching need to preserve the legitimacy of courts in their role as sites for dispute resolution, interpretation and application of law.  It also suggests the importance of methodology as a principal basis for enhancing the legitimacy of the judicial method. But we have also noted how these methods, though robust and still important in the practice of law, have sustained a deep criticism by academics and ideologues bent on its replacement with alternatives that may further their political agendas even as they purport to adjust practice to the realities of . . .practice.

We have begun to see how the jurisprudential arguments are essentially political--and that the objects of the champions of one to another academic and political movement about the character and practice of judicial interpretation of statutes essentially is meant to champion a particular political vision of the relative roles and powers of courts and legislature.  But also the readings suggest an underlying and more important theme.  These debates also represent conflicts about the relationship of law to the state, one that we have followed in Part II of the materials, and one that remains very much a lively and unresolved topic of American political theory.  That the courts are the site of this political discussion is no surprise, since the courts have been at the center of the  legal construction of the American Republic and law has been the means chosen to constrain and channel the deployment of political power, even as the courts retained their traditional role as the principal institution for the resolution of private and public disputes. That multi-utility of courts, easier to understand when the United States was closer to its original roots, has been put under strain as American law has moved more robustly to law and regulation and away from the common law and the articulation of custom and tradition of private arrangements and social norms. Yet the courts remain, and law retains its character as a space both within and beyond the government of the state, however much Francis Bacons of the 21st century seek to defend the power of the the monarch or the Crown's republican progeny against the autonomy of law in the American Republic. Not that Francis Bacon was wrong, just that his view only partially captured the complexity of the times.  The canons of construction capture another aspect of this complexity.  For all their failures, and these failures are great indeed, they capture an important reality of courts sometimes overlooked in the ideological debates described above--the need to deepen the rule of law by adhering to methodologies that may enhance the disconnection between the individual judge and her desires from the common understandings of the body of judges whose views and methods she is duty bound to apply.  But that is controversial.  For civil law tastes and their sympathizers in the U.S., such approaches push the judiciary perilously close to the legislative function--but the people reject the notion that common law or its culture survived to any legitimate extent in the U.S.  For others, complacency has produced the laxity and abuse nicely described in the readings but also reflect a sensibility in which the idea of legislation as a description of the entirety of the law is rejected and the role of the judiciary in relation to it is understood as more complex, an interaction in which legislation remains very much embedded within the law system the entirety of which it is for the judges to administer in a coherent manner.   That they fail is obvious; that this failure is cause to abandon the structure is less clear.