101 Colum LRev 1

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COLUMBIA LAW REVIEW

VOL. 101 JANUARY 2001 NO. 1
ARTICLE
TEXTUALISM AND THE EQUITY OF THE STATUTE
John F.Manning* Recent scholarshiphas sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute-a doctrine that treated atexual, purposive interpretation as an inherent attribute of judicial authority. In particular,modern proponents contend that this common law doctrine, rather than the currently prevailingfaithful agent theory, more accurately reflects the original understandingof "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrinefailed to survive the structuralinnovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, ProfessorManning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.
TABLE OF CONTENTS
Introduction ....................................................
3
9
I. THE PROBLEM ELABORATED: FAITHFUL AGENT THEORIES

VERSUS THE EQUITY OF THE STATUTE ......................
A. Strong Purposivism and the Faithful Agent Theory ... B. Textualism and the Faithful Agent Theory ............ C. The Equity of the Statute ............................
II.
ENGLISH ANTECEDENTS TO "THE JUDICIAL POWER"............
A. The Equity of the Statute: English Roots ............. B. The English Institutional Setting for the Equity of the Statu te ...............................................
10 15 22 27 29 36
* Michael I. Sovern Professor of Law, Columbia University. I thank Al Alschuler, Brad Clark, David Currie, Susan Davies, Michael Doff, Hal Edgar, Richard Epstein, William Eskridge, Cynthia Estlund, Daniel Farber, Robert Ferguson, Beth Garrett, Victor Goldberg, Jack Goldsmith, Richard Helmholz, Kevin Huff, William Kelley, Saul Levmore, Debra Livingston, John McGinnis, Henry Monaghan, Subha Narasimhan, Scott Shapiro, David Strauss, Peter Strauss, Susan Sturm, Cass Sunstein, Paul Verkuil, Adrian Vermeule, Jeremy Waldron, and John Yoo for insightful comments on prior drafts. I thank the participants in faculty workshops at the Cardozo Law School, the University of Chicago School of Law, Columbia University School of Law, and Notre Dame School of Law. I thank Eric Bravin, Keith Levenberg, Kevin Martin, Melinda Stege, Anne Voigts, and Alex Willscher for excellent research assistance. I am grateful to Shane Stansbury for insightful editing.
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1. Medieval Antecedents ........................ 2. The Commingling of Legislative and Judicial Functions ........................................ 3. The Crown and Its Judges ........................ 4. Equity in the Eighteenth Century and Beyond ....
III.
"THE JUDICIAL POWER" IN A SYSTEM OF SEPARATED
37 43 47 52 56 58 70 78 79 85 102
105
POWERS.
A. The Separation of Legislative and Judicial Powers and the Rule of Law ............................... B. Bicameralism and Presentment and Legislative Com prom ise ......................................... C. Early American Attitudes Toward the Equity of the Statute ............................................... 1. The Ratification Debates and the Equity of the Statute ........................................... 2. The Early Federal Judicial Practice ............... 3. Subsequent History: The Consolidation of the Faithful Agent Theory ............................
IV.
CAN
THERE BE TEXTUALISM WITHOUT EQUITY?.............
A. B. C. D.
Textualism and Statutory Purpose .................... Textualism, Literalism, and Statutory Context ........ Absurd Results and Rationality Review ................ Judicial Review, the Canon of Avoidance, and Clear Statem ent Rules .....................................
107 108 115 119 126
CONCLUSION .......................................................
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EQUITY OF THE STATUTE
There is a species of interpretation or construction (or rather ofjudicial legislation disguised with the name of interpretation) by which the defective but clear provisions of a statute
are extended to a case which those provisions have omitted. As
I shall endeavor to shew... this species of interpretation or construction is not interpretation or construction properly so called.
The specific provisions of the statute, and the specific intention of the lawgiver, are perfectly unequivocal or certain. It is certain that the case is not embraced by the law, and was not present to
the mind of the lawgiver when he constructed the law. But since
its provisions would have embraced the case, if its author had pursued consequentially his own general design[,] the judge (exercising a power expressly or tacitly given to him) completes the defective provisions actually comprised in the law; and supplies the defective intention which its maker actually entertained, from the predominant purpose or end which moved
him to make the statute.
INTRODUCTION
- John Austin1
The Supreme Court divides philosophically over the proper course to take when a statutory text fits poorly With the purpose apparently underlying its enactment. 2 In such cases, the Court's "purposivists" (or, more precisely, its "strong purposivists") 3 emphasize the statute's policy context; when a specific text does not correspond to its spirit or purpose, the letter of the law must yield. 4 The Court's "textualists," by contrast,
1. 2 John Austin, Lectures on Jurisprudence 596-97 (Robert Campbell ed., 4th ed. 1873). 2. See, e.g., Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 4 (1998) ("When the Justices divide over interpretive methodology, they usually do so along a fault line between textualists and purposivists."); cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 112 (1991) (Stevens, J., dissenting) ("In recent years the Court has vacillated between a purely literal approach to the task of statutory interpretation and an approach that seeks guidance from historical context, legislative history, and prior cases identifying the purpose that motivated the legislation."). For a precise definition of "purpose" as used here, see infra text accompanying note 7. 3. I use "strong purposivists" to identify those who rely on purpose to depart from a clear statutory text, rather than those who use it merely to clarify an ambiguous text. There is a broad consensus that interpreters can legitimately use purpose in the latter context. Compare Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1374, 1380 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (1958) (arguing thatjudges should try "to develop a coherent and reasoned pattern of applications intelligibly related to the general purpose," but not if it means assigning statutory terms "a meaning they will not bear"), with Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 515 [hereinafter Scalia, Judicial Deference] ("Surely one of the most frequent justifications courts give for choosing a particular construction is that the alternative interpretation would produce 'absurd' results, or results less compatible with the reason or purpose of the statute."). Questions about the practice of "weak purposivism" are not addressed in this Article. 4. Justices Stevens and Breyer are the Court's leading proponents of strong purposivism. See, e.g., Clinton v. City of New York, 524 U.S. 417, 428-29 (1998) (Stevens,
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give precedence to semantic context; judges must enforce the conventional meaning of a clear text, even if it does not appear to make perfect 5 sense of the statute's overall policy. The question of text versus purpose has always troubled the law of
statutory interpretation 6 -and it always will. A statutory text conveys directions of varying specificity to those who must implement or obey the law. But behind those textual commands, it is said, lies a background purpose: the underlying aim or policy that explains or justifies the statute's enactment. 7 Because statutory texts are often necessarily drafted in general terms, none will match its apparent purpose in every application; all will sometimes seem under- or overinclusive. 8 No legislature possesses
J.) (refusing to apply the semantic meaning of an expedited review provision in the Line Item Veto Act because the literal application undermined the statutory purpose to provide "aprompt and authoritative judicial determination of the constitutionality of the Act"); Lewis v. United States, 523 U.S. 155, 160 (1998) (Breyer, J.) (refusing to enforce a statute's conventional meaning when "a literal reading of the words ... would dramatically separate the statute from its intended purpose"). 5. The Court's leading textualists are Justices Scalia and Thomas. See, e.g., Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 351 (1994) [hereinafter Merrill, Textualism]; Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L. Rev. 687, 717 (1998); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.) ("We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.... When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete."' (quoting Rubin v. United States, 449 U.S. 424, 430 (1981))); Casey, 499 U.S. at 99 (Scalia, J.) ("Where, as here, the statute's language is plain, the sole function of the Court is to enforce it according to its terms." (citations and internal quotations omitted)). 6. This concern goes back at least to Aristotle: When the law speaks universally .... and a case arises on which it is not covered by the universal statement, then it is right, where the legislator fails us and has erred by over-simplicity, to correct the omission-to say what the legislator himself would have said had he been present, and would have put into his law if he had known. The Nichomachean Ethics of Aristotle 133 (Sir David Ross trans., 1925). 7. See, e.g., Hart & Sacks, supra note 3, at 1124 ("The idea of a statute without an intelligible purpose is foreign to the idea of law and inadmissible."); Archibald Cox,Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370, 370 (1947) (noting that some "purpose lies behind all intelligible legislation"); Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 538-39 (1947) [hereinafter Frankfurter, Reflections] ("Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government."). 8. See Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 236 [hereinafter Schauer, Statutory Construction] ("Where decisionmakers are instructed in accordance with ... specific directives, these directives are necessarily actually or potentially both under- and over-inclusive vis-a-vis their background justifications."). Two famous examples illustrate the point: First, the ordinary meaning of a text barring unleashed "dogs" from public parks does not reach domesticated bobcats, even though an unleashed bobcat would seem to fall within the likely purposes of a leash law that applied to dogs. See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 535-36 (1983) [hereinafter Easterbrook, Statutes' Domains] (using leash law to illustrate problem of underinclusiveness); Robert E. Keeton, Statutory Analogy,
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(or could possess) the foresight or drafting ability necessary to avoid that inevitable result. 9 Indeed, the more precisely the legislature attempts to articulate its instructions, the worse the problem of fit be0 comes.1 These circumstances present the federal judiciary with a dilemma. In our constitutional system, it is widely assumed that federal judges must act as Congress's faithful agents. 1 On that assumption, if Congress legislates within constitutional boundaries, the federal judge's constitutional duty is to decode and follow its commands, particularly when they are clear. 12 When a clear text seems to diverge from its apparent purpose, federal judges face an unhappy choice. If they give a clear text priority over its apparent purpose, the results may make little sense of an evident legislative policy. If, instead, they enforce the background purpose in
Purpose, and Policy in Legal Reasoning: Live Lobsters and a Tiger Cub in the Park, 52 Md. L. Rev. 1192, 1205 (1993) (same). Second, the conventional meaning of a statute barring "vehicles" from the same park would apply to ambulances, even though one might reasonably suppose that the statute's purpose was to address routine traffic, rather than a sporadic, life-saving occurrence. See, e.g., Lon L. Fuller, Positivism and Fidelity to Law-A Reply to Professor Hart, 71 Harv. L. Rev. 630, 662-63 (1958) (discussing "no vehicles in the park" example); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 606-08 (1958) (same). 9. This point has long been recognized. See, e.g., 1 William Blackstone, Commentaries *61 (noting that "in laws all cases cannot be foreseen or expressed"); The Federalist No. 37, at 229 (James Madison) (Clinton Rossiter ed., 1961) ("[I]t must happen that however accurately objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered."). For a more recent perspective, see, for example, NBD Bank, N.A. v. Bennett, 67 F.3d 629, 633 (7th Cir. 1995) (Easterbrook, J.) ("No Member of Congress can anticipate all questions that will come to light; and a body containing hundreds of members with divergent agendas can't answer even a small portion of the questions that do occur to its members."). 10. See, e.g., Colin S. Diver, The Optimal Precision of Administrative Rules, 93 Yale L.J. 65, 73 (1983) ("Increasing the transparency of a rule may increase the variance between intended and actual outcomes. The rulemaker may be unable to predict every consequence of applying the rule or to forsee all of the circumstances to which it may apply."); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557, 591 (1992) ("[T]he simple rule is both over- and underinclusive compared to the more complex standard."). 11. See, e.g., Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 415 (1989) [hereinafter Sunstein, Interpreting Statutes] ("According to the most prominent conception of the role of courts in statutory construction, judges are agents or servants of the legislature. . . . The judicial task is to discern and apply a judgment made by others, most notably the legislature."); Nicholas S. Zeppos, Legislative History and the Interpretation of Statutes: Toward a Fact-Finding Model of Statutory Interpretation, 76 Va. L. Rev. 1295, 1313 (1990) ("Traditional democratic theory suggests that the court interpreting a statute must act as the faithful agent of the legislature's intent."). 12. See Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 Case W. Res. L. Rev. 179, 189 (1986) [hereinafter Posner, Legal Formalism] ("In our system of government the framers of statutes . . . are the superiors of thejudges. The framers communicate orders to the judges through legislative
texts .... If the orders are clear, the judges must obey them.").
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preference to the clear text, the results apparently defy the specific commands that the legislature has duly enacted into law. The problem arises 13 frequently, often in high-profile cases. For most of the last century, the Court handled this dilemma without concern. Building on its landmark nineteenth-century case, Church of the Holy Trinity v. United States,14 the Court invoked the concept of "legislative intent" to reconcile strongly purposive interpretation with the faithful agent theory. 15 While the terms are often used loosely,1 6 an analytically important distinction exists between purpose and intent. If purpose refers to "the general aims" of legislation, intent can be understood, more precisely, to connote "meaning"-that is, "the specific particularized application which the statute was 'intended' to be given." 17 Conventional wisdom has long decreed that the judge's duty is to search for the sense that the legislature intended to convey,' 8 a sense that may not always correspond to the ordinary meaning of the enacted words. 19 Starting from that premise, the Court has assumed that Congress at times speaks clearly but imprecisely. Hence, if Congress passes a statute for a reason, but the text deviates markedly from that apparent purpose, Congress must have "intended" to use the statute's words in something other than their conventional sense. 20 On that assumption, strongly purposive interpretation was not "the substitution of the will of the judge for that of the legislator," 2' but rather a superior way to read actual legislative outcomes. Until 22 recently, the Court took these assumptions as a given.
13. See, e.g., sources cited infra notes 22, 45-46, 61, 84. 14. 143 U.S. 457 (1892). 15. See infra Part I.A; see also William N. Eskridge,Jr., The New Textualism, 37 UCLA L. Rev. 621, 628-29 (1990) [hereinafter Eskridge, New Textualism] (describing Holy Trinity Church as the "leading case" for the proposition that federal courts can displace "plain meaning with apparent legislative intent or purpose"); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 289 n.42 (1989) (noting that Holy Trinity Church is "the most commonly cited authority for rejecting literal meaning when applying it would lead to an 'absurd' result"); Frederick Schauer, Constitutional Invocations, 65 Fordham L. Rev. 1295, 1307 (1997) ("Church of the Holy Trinity v. United States is not only a case, but is the marker for an entire legal tradition, a tradition ... emphasizing ...that there is far more to law than the plain meaning of authoritative legal texts . . . ."(footnote omitted)). 16. See James M. Landis, A Note on "Statutory Interpretation," 43 Harv. L. Rev. 886, 888 (1930). 17. Cox, supra note 7, at 371. 18. See infra note 47 and accompanying text. 19. See infra note 48 and accompanying text. 20. See Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892); see also infra Part I.A. 21. Holy Trinity Church, 143 U.S. at 459. 22. See, e.g., Pub. Citizen v. United States Dep't of Justice, 491 U.S. 440, 452-54 (1989); Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284 (1987); Anderson Bros. Ford v. Valencia, 452 U.S. 205, 222 n.20 (1981); United Steelworkers v. Weber, 443 U.S. 193, 202 (1979); Train v. Colo. Pub. Interest Research Group, 426 U.S. 1, 10 (1976); United Hous. Found., Inc. v. Forman, 421 U.S. 837, 849 (1975); Nat'l Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 620 (1967); United States v. Pub. Util. Comm'n, 345 U.S. 295, HeinOnline -- 101 Colum. L. Rev. 6 2001
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Near the close of the twentieth century, however, the "new textualism ''23 called into question that justification and, by extension, strong purposivism itself. Most often associated with Judge Easterbrook and Justice Scalia, textualism also starts from the faithful agent premise-that a federal court is responsible for accurately deciphering and implementing the legislature's commands. 24 In contrast with strong purposivists, however, textualists believe that when a statutory text is clear, that is the end of the matter.2 5 Drawing upon the insights of interest-group and game theory, 26 textualists maintain for several reasons that variance between a clear text and its apparent purpose does not show that Congress, in some sense, poorly communicated its intent. First, because lawmaking often entails compromise among interest groups with diverse goals, legislators do not necessarily pursue a statute's background purpose to its logical end. 27 Second, in a complex legislative process that includes agenda manipulation and logrolling, it is impossible to reconstruct what a legislature would have "intended" if put to a choice between the letter and purpose of the law.28 Third, enforcing the background purpose, rather than the details, of a precise text may, in fact, defeat Congress's evident choice to legislate by rule rather than by standard. 29 In the past decade or so, this critique has had a serious impact on the Court's opinions, which increasingly question whether a clear text should ever yield to its apparent 30 purpose. In response to the new textualism, more recent scholarship has proposed an alternative rationale for the method of strong purposivism, one that does not rest on the tenuous ground of actual legislative intent. In particular, this work maintains that both textualists and (traditional) strong purposivists focus too sharply on the results of the legislative process, thereby ignoring the predicate question whether the faithful agent theory gives an accurate sense of the judicial role in statutory interpretation. These scholars maintain, in particular, that the judicial power "to 3 say what the law is"11 originally encompassed an inherent equitable power 32 to reshape statutes without regard to legislative intent.
315 (1953); Johansen v. United States, 343 U.S. 427, 431 (1952); Int'l Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952). 23. The terminology comes from William Eskridge. Eskridge, New Textualism, supra note 15, at 621. For the differences between the "new textualism" and the antecedent "plain meaning" school of interpretation, see infra text accompanying notes 417-421. 24. 25. 26. 27. 28. 29. 30. 31. See infra note 62 and accompanying text. See infra note 70 and accompanying text. See infra note 71 and accompanying text. See infi'a text accompanying notes 71-73. See infra text accompanying notes 74-78. See infra text accompanying notes 79-82. See infra notes 84-85. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 32. See infra text accompanying note 88. HeinOnline -- 101 Colum. L. Rev. 7 2001
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Of most interest here, their evidence is self-consciously originalist: English common law judges, who served as the Founders' baseline for understanding judicial power, had traditionally applied a doctrine known as "the equity of the statute. '33 Under the authority of that doctrine, English judges had often extended statutes beyond their plain terms in order to make them more coherent expressions of purpose, and cut back others to avoid inequitable results that did not serve the statutory purpose.3 4 At least some of the Founders assumed that this English practice would apply to the federal judiciary. 35 And some early American judges took that assumption to heart, explicitly engaging in equitable interpretation. 36 This "equity of the statute" jurisprudence is invoked to offer an alternative (and more convincing) basis for interpretive methods that are substantially similar or equivalent to strong purposivism. Textualists must take the equity of the statute seriously. Because statutory textualists are originalists in matters of constitutional law, the underlying historical argument, if sustainable, would undercut their central claim-that textualism produces more faithful agents. If the technique of strongly purposive interpretation could be justified as an exercise of inherent judicial power, the legislative process objections raised by textualists would be beside the point. Curiously, however, textualists have yet to examine the specific historical evidence relating to the equity of the '3 7 statute and its relevance to "the judicial Power of the United States. Claims resting on the tradition of equitable interpretation of statutes are serious, but ultimately they face several fatal objections. First, these claims oversimplify the complex relationship of English legal tradition to the U.S. Constitution. Our constitutional structure certainly drew upon prior English practice in some respects, but it also departed from that practice in important respects. The equity of the statute, properly understood, was a doctrinal artifact of an ancient English governmental structure, one that had blended governmental powers in ways that made it natural for judges to exercise independent discretion in relation to statutes. 38 So viewed, the doctrine does not translate well into a U.S. Constitution marked by separated powers and a carefully designed system of checks and balances. Second, the evidence of the original understanding of "the judicial Power" in America is mixed, but ultimately it does not support the equity of the statute. As one might expect, some of the Founders and some early American judges did take the equity of the statute as a given; after all, it was set down in the very legal sources with which they were most
33. See William N. Eskridge, Jr., Textualism, The Unknown Ideal?, 96 Mich. L. Rev. 1509, 1523-24 (1998) [hereinafter Eskridge, Unknown Ideal]. 34. See infra Part II.A. 35. See Eskridge, Unknown Ideal, supra note 33, at 1529-30. 36. See id. at 1524-26. 37. U.S. Const. art. III, 1. 38. See infra Part II.B. HeinOnline -- 101 Colum. L. Rev. 8 2001
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familiar: old English law books. Still, in crucial respects, the original understanding of the constitutional structure contradicts the premise that federal judges were invested with lawmaking discretion analogous to that of their English antecedents. In addition, although relatively few federal statutory cases occupy the early volumes of case reports, it is safe to say that the equity of the statute never gained a secure foothold in the federal courts. To a great extent (though not entirely), it seems to have yielded to what we now call the faithful agent theory as early as the Marshall Court. Subsequent developments, moreover, make clear that the faithful agent theory, rather than the equity of the statute, ultimately withstood the test of time. Part I of this Article sets the stage by elaborating briefly upon the competing theories of interpretation. Part II examines the English background, situating the equity of the statute in the context of the governmental structures that sustained it. Part III compares the English structural environment with that of the United States. In particular, it considers the U.S. Constitution's careful design of legislative and judicial powers and functions, founding-era perceptions of the judicial power, and the federal judiciary's approach to statutes following the Constitution's adoption. Finally, Part IV shifts ground somewhat, examining some of the normative consequences of rejecting the equity of the statute. Modern equity of the statute proponents offer the doctrine as a means of avoiding what they perceive to be the rigidity and literalism of textualist interpretation. Part IV will argue that textualism, properly understood, does not produce the results that have inspired renewed interest in this ancient doctrine.
I. THE PROBLEM ELABORATED: FAITHFUL AGENT THEORIES VERSUS THE THE STATUTE
EQUITY OF
To understand the important contribution of the equity of the statute to the debate, it is important to recognize that strong purposivism and textualism differ markedly in technique, but they do so in the name of an ostensibly shared constitutional premise. In particular, strong purposivism and textualism both seek to provide a superior way for federal judges to fulfill their presumed duty as Congress's faithful agents. But while these philosophies start from similar assumptions aboutjudicial power, they differ markedly in their understandings of the legislative process. Strong purposivism assumes that fidelity to background statutory purpose, rather than textual detail, is more likely to reflect the actual intent or will of a Congress that is sometimes imprecise in its expression. Textualists, in contrast, believe that judges cannot accurately distill legislative intent from a complex legislative process; hence, by disregarding the clear terms of an enacted text, strong purposivism disregards the most reliable indicium of statutory meaning. In recent years, the textualists' legislative process critique has palpably affected Supreme Court decisionmaking.
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Equity of the statute proponents offer a wholly different conception of the constitutional framework for statutory interpretation, one that rejects the faithful agent theory as an ahistorical and unjustifiable conception of the judicial power. In so doing, they seek to construct an alternative justification for the technique of strong purposivism. Hence, they argue that the federal judicial power, as originally understood, implicitly incorporated the premises of the equity of the statute, an ancient common law doctrine recognizing inherentjudicial authority to extend or cut back on clear statutory texts in order to serve the ratio legis. For its proponents, then, a revival of that doctrine would justify atextual, purposive interpretation as a traditional exercise ofjudicial authority, rather than as an implausible approximation of actual legislative intent. Because acceptance of this essentially historical argument would recast the terms of the current statutory interpretation debate, it deserves serious consideration. To set the stage for such consideration, this Part examines the three competing approaches in turn.
A. Strong Purposivism and the Faithful Agent Theory
Strong purposivists recognize that statutory language can be clear in its social and linguistic context.39 They believe, however, that even the clearest statutory language will sometimes contradict a statute's apparent "purpose," as discerned from sources such as the statute's overall tenor,40 the history of the era in which the statute was passed, 4 1 society's deeply
39. See, e.g., Quintin Johnstone, An Evaluation of the Rules of Statutory Interpretation, 3 U. Kan. L. Rev. 1, 12-13 (1954) ("Although no statute may be absolutely unambiguous, the degree of ambiguity in most statutes is very slight when applied to most situations. The degree of ambiguity is likely to be substantial only in limited peripheral sets of situations."); Posner, Legal Formalism, supra note 12, at 187 ("A text is clear if all or most persons, having the linguistic and cultural competence assumed by the authors of the text, would agree on its meaning."). Indeed, the Court's strong purposivist opinions often start by acknowledging that a statute's "words" are generally the most reliable evidence of the legislature's aims. For example: There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning. United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543 (1940); see also Ozawa v. United States, 260 U.S. 178, 194 (1922) ("It is the duty of this Court to give effect to the intent of Congress. Primarily this intent is ascertained by giving the words their natural significance .... "). 40. The overall tenor of a statute may disclose "what Congress was 'driving at.'" Cox, supra note 7, at 378; see also Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 876 (1930) [hereinafter Radin, Statutory Interpretation] ("In the case of statutes ... it is rare indeed that we can not say positively what any particular statute is for, by reading it."). 41. See, e.g., Cox, supra note 7, at 379 ("[T]he courts have never had serious difficulty in using the history of the times as well as the committee reports and debates in Congress to ascertain the evil which the legislation was designed to remedy."); Frankfurter, Reflections, supra note 7, at 539 (noting that statutory purpose may be discerned in "the known temper of legislative opinion"). HeinOnline -- 101 Colum. L. Rev. 10 2001
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held values, 42 patterns of policy judgments in related statutes, 43 and statements in the legislative history.4 4 The distinguishing feature of strong purposivism is that when a specific statutory text produces "an unreasonable [result] 'plainly at variance with the policy of the legislation as a whole,"' federal judges may (and must) alter even the clearest statutory '45 text to serve the statute's "purpose. To reconcile this approach with their acknowledged constitutional duties, strongly purposivistjudges for many years have relied upon legisla46 tive "will" or "intent" to justify enforcing purpose rather than text.
42. See infra note 58. 43. See, e.g., Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 389 (1939) ("The Congressional will must be divined, and by a process of interpretation which, in effect, is the ascertainment of policy immanent not merely in the single statute ... but in a series of statutes . . . and drawing significance from dominant contemporaneous opinion."); Frankfurter, Reflections, supra note 7, at 539 ("Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes . . "). 44. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 304 (1988) (Brennan, J., concurring in part and dissenting in part) ("The sparse legislative history confirms that Congress' sole goal was to overrule Katzel."); United Steelworkers v. Weber, 443 U.S. 193, 201-04 (1979) (relying on legislative history to discern Title VII's general purpose to improve the economic status of racial minorities). For a list of additional sources of legislative purpose, see, for example, United States v. Katz, 271 U.S. 354, 357 (1926) ("In ascertaining . . . purpose, we may examine the title of the act, the source in previous legislation of the particular provision in question, and the legislative scheme or plan by which the general purpose of the Act is to be carried out." (citations omitted)). 45. United States v. Am. Trucking Ass'ns, 310 U.S. 534, 543 (1940) (citation omitted); see also Comm'r v. Brown, 380 U.S. 563, 571 (1965) ("Unquestionably the courts, in interpreting a statute, have some 'scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning would lead to absurd results... or would thwart the obvious purpose of the statute.'" (citations omitted)); Int'l Longshoremen's & Warehousemen's Union v. Juneau Spruce Corp., 342 U.S. 237, 243 (1952) ("That reading of the Act does not... take the words.., in their historic, technical sense. But literalness is no sure touchstone of legislative purpose. The purpose here is more closely approximated ... by giving the historic phrase a looser, more liberal meaning in the special context of this legislation."); Ozawa v. United States, 260 U.S. 178, 194 (1922) ("We may... look to the reason of the enactment and inquire into its antecedent history and give it effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in order that the purpose may not fail."); Pickett v. United States, 216 U.S. 456, 461 (1910) ("The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage."). 46. See, e.g., Pub. Citizen v. United States Dep't of Justice, 491 U.S. 440, 452-53 (1989) (concluding that an acquaintance with the Federal Advisory Committee Act's "purposes, as manifested by its legislative history and as recited in... the Act, reveals that it cannot have been Congress' intention" to adopt the conventional import of the word .utilize"); Weber, 443 U.S. at 202-05 (despite the seemingly unqualified antidiscrimination language of Title VII of the Civil Rights Act of 1964, Congress's "primary concern" with opening up economic opportunities for racial minorities makes clear that it could not have "intended" to prohibit voluntary affirmative action); United States v. Carbone, 327 U.S. 633, 637 (1946) ("[N]ot every person or act falling within the literal sweep of the ... Act necessarily comes within its intent and purpose. That language must be read and applied in light of the evils which gave rise to the statute and the aims which the proponents
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They have freely assumed that federal courts, acting as Congress's faithful agents, must give a statutory text the sense that the Congress intended to convey. 47 But they have insisted for several reasons that the ordinary meaning of a statutory text will not always accurately reflect actual or likely legislative intent:48 words are inexact; legislators are busy; foresight
sought to achieve."); Sorrells v. United States, 287 U.S. 435, 446 (1932) ("[C]an an application of the statute having such an effect-creating a situation so contrary to the purpose of the law and so inconsistent with its proper enforcement as to invoke such a challenge-fairly be deemed to be within its intendment?"). 47. See, e.g., Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) ("Our objective ... is to ascertain the congressional intent and give effect to the legislative will."); Am. Trucking Ass'ns, 310 U.S. at 542 ("In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress."); Interstate Commerce Comm'n v. Baird, 194 U.S. 25, 38 (1904) ("The object of construction, as has been often said by the courts and writers of authority, is to ascertain the legislative intent, and, if possible, to effectuate the purposes of the lawmakers."); Rodgers v. United States, 185 U.S. 83, 86 (1902) ("The primary rule of statutory construction is, of course, to give effect to the intention of the legislature."); see also T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich. L. Rev. 20, 23 (1988) (stating that intentionalism presupposes that determining "what the legislature actually intended ... serve[s] the goal of legislative supremacy"); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321, 326 (1990) [hereinafter Eskridge & Frickey, Statutory Interpretation] ("If the legislature is the primary lawmaker and courts are its agents, then requiring the courts to follow the legislature's intentions disciplines judges by inhibiting judicial lawmaking, and in so doing seems to further democracy by affirming the will of elected representatives."); Abner J. Mikva, A Reply to judge Starr's Observations, 1987 Duke L.J. 380, 386 ("When Congress uses a word, the word means what Congress says it means, all the dictionary definitions to the contrary notwithstanding. If Congress has established what it wants a word to mean, that is what it means."); Roscoe Pound, Spurious Interpretation, 7 Colum. L. Rev. 379, 381 (1907) [hereinafter Pound, Spurious Interpretation] ("The object of genuine interpretation is to discover the rule which the law-maker intended to establish; to discover the intention with which the law-maker made the rule, or the sense which he attached to the words wherein the rule is expressed."). 48. Modern language theory suggests that words derive meaning from the way speakers use them. See Stanley Fish, Play of Surfaces: Theory and the Law, in Legal Hermeneutics: History, Theory, and Practice 297, 299 (Gregory Leyh ed., 1992); Gerald Graff, "Keep off the Grass," "Drop Dead," and Other Indeterminacies: A Response to Sanford Levinson, 60 Tex. L. Rev. 405, 407 (1982). Many legal theorists have expressed a similar view. See, e.g., Frank E. HorackJr., In the Name of Legislative Intention, 38 W. Va. L.Q. 119, 120 (1932) ("When X says, 'A big bundle of bills came this morning', does Y know what X received? . .. Y is only interested in learning what meaning X is trying to convey."). Perhaps more importantly, speakers can attach specialized meaning to otherwise ordinary language. Take the following example offered by Paul Campos: [C]onsider the interpretive options of a spy who receives a telegram reading, "The red fish swims at dawn," and interprets this to mean "destroy the microfilm." Does the English language allow this text to mean what is usually meant in English by "destroy the microfilm?" If we answer "yes," then it would seem that the English language consists of any possible range of meanings that people who consider themselves English speakers might assign to signifiers that are conventionally taken to be English words. Paul Campos, That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text, 77 Minn. L. Rev. 1065, 1089 (1993).
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is limited. 49 Accordingly, using all the resources at their disposal, judges applying this approach attempt to reconstruct what Congress would have intended to accomplish in the particular circumstances before the court. 50 Background purpose is directly relevant to that task. If Congress is known to be shortsighted or imprecise in reducing its objectives to words, then its faithful agents, the federal courts, may be truer to their principal's actual intent if they enforce a statute's policy or purpose, 51 rather than its semantic detail.
49. As Judge Posner has put it: J] udges realize in their heart of hearts that the superficial clarity to which they are referring when they call the meaning of a statute "plain" is treacherous footing for interpretation. They know that statutes are purposive utterances and that language is a slippery medium in which to encode a purpose. They know that legislatures, including the Congress of the United States, often legislate in haste, without considering fully the potential application of their words to novel settings. Friedrich v. City of Chicago, 888 F.2d 511, 514 (7th Cir. 1989); see also K Mart Corp., 486 U.S. at 303 (Brennan, J., concurring in part and dissenting in part) (arguing that statute's "specific wording ... was by no means carefully considered, which provides all the more reason to avoid a hypertechnical interpretation"); United States v. Locke, 471 U.S. 84, 118-19 (1985) (Stevens, J., dissenting) (arguing that a clear text may be "the consequence of a legislative accident, perhaps caused by nothing more than the unfortunate fact that Congress is too busy to do all of its work as carefully as it should" (quoting Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 97 (1977) (Stevens, J., dissenting))). 50. See, e.g., United States v. Klinger, 199 F.2d 645, 648 (2d Cir. 1952) (Learned Hand, J.) ("Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion."), affd per curiam, 345 U.S. 979 (1953); John M. Kernochan, Statutory Interpretation: An Outline of Method, 3 Dalhousie L.J. 333, 343 (1976) ("Does it not seem obvious that a way to minimize the risk of frustrating the legislative will is to pose the question which is keyed to the legislative will, the question as to what was meant or purposed by the legislators?"); Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983) [hereinafter Posner, Statutory Interpretation] ("[T]he task for the judge called upon to interpret a statute is... 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." (footnote omitted)). 51. Lon Fuller used the following metaphor to express the point: No superior wants a servant who lacks the capacity to read between the lines. The stupidest housemaid knows that when she is told "to peel the soup and skim the potatoes" her mistress does not mean what she says. She also knows that when her master tells her to "drop everything and come running" he has overlooked the possibility that she is at the moment in the act of rescuing the baby from the rain barrel. Surely we have a right to expect the same modicum of intelligence from the judiciary. The correction of obvious legislative errors or oversights is not to supplant the legislative will, but to make that will effective. Lon L. Fuller, The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616, 625-26 (1949); see also Richard A. Posner, The Problems ofJurisprudence 268 (1990) ("Suppose I ask my secretary to call Z [to cancel lunch]. The secretary notices that on my calendar I have marked lunch with Y, not Z.... Is it not plain that the secretary should call Y, even though there was no semantic or internal ambiguity in my instruction?"); Farber, supra note 15, at 289 ("[L]iteral application of a directive might be senseless or contrary to its obvious purpose.... Rejecting the literal application in these situations can hardly be considered
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Church of the Holy Trinity v. United States5 2 remains the leading precedent for this philosophy. The Alien Contract Labor Act made it a crime to assist or encourage any alien to migrate to the United States to "perform labor or service of any kind."5 3 Although the church had contracted with a cleric from England to minister to a New York congregation, thereby seemingly transgressing the express terms of the Act's prohibition, 54 the Court held that "a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. '55 Although a clergyman renders professional services, the Court reasoned that the statute's background purpose was to prevent the migration of manual laborers. The Act's title only mentioned those who came "to perform labor."'56 The circumstances surrounding the Act's passage, moreover, strongly suggested that Congress sought only to prevent "the influx of ... cheap unskilled labor. '5 7 Based on that
disobedience."); Posner, Legal Formalism, supra note 12, at 205 (comparing the textbound judge to a soldier who, "having received an order that is clear, but also clearly erroneous because of a mistake in transmission, nevertheless carries out the order as received, rather than trying to determine what response would advance the common enterprise"). As Judge Posner noted in Friedrich: When a court can figure out what Congress probably was driving at and how its goal can be achieved, it is not usurpation-it is interpretation in a sense that has been orthodox since Aristotle-for the court to complete (not enlarge) the statute by reading it to bring about the end that the legislators would have specified had they thought about it more clearly or used a more perspicuous form of words. 888 F.2d at 514. 52. 143 U.S. 457 (1892). 53. Id. at 458 (quoting Alien Contract Labor Act of 1885, ch. 164, 1, 23 Stat. 332, 332 (amended 1887, 1888)). 54. The Court in Holy Trinity Church acknowledged that the church's action had violated the letter of the law: It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added "of any kind;" and, further . . . the fifth section [of the statute], which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. Id. at 458-59. 55. Id. at 459. 56. Id. at 463. 57. Id. at 465. The Court laid particular emphasis on a Senate Report, which explained: The general facts and considerations which induce the committee to recommend the passage of this bill are set forth in the Report of the Committee of the House. The committee report the bill back without amendment, although there are certain features thereof which might well be changed or modified, in the hope that the bill may not fail of passage during the present session. Especially would the committee have otherwise recommended amendments, substituting for the expression "labor and service," whenever it occurs in the body of the bill, the HeinOnline -- 101 Colum. L. Rev. 14 2001
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background purpose, the Court found it "unreasonable to believe that the legislat[ure] intended to include the particular act" of hiring a minister from abroad. 58 Put another way, the statutory text "unexpectedly... reach[ed] cases and acts which . . . could not have been intentionally legislated against." 59 Bringing the text into line with its purpose was therefore not "the substitution of the will of the judge for that of the legislator."60 For almost a century, Holy Trinity Church supplied the standard interpretive method when the Court believed that a statute, however 61 clear it might seem, did not serve its underlying purpose. B. Textualism and the Faithful Agent Theory The new textualists challenged the approach of Holy Trinity Church by advancing what they perceive to be a superior means to reach the same constitutional goal of faithful agency. 62 In contrast to strong
words "manual labor" or "manual service," as sufficiently broad to accomplish the purposes of the bill, and that such amendments would remove objections which a sharp and perhaps unfriendly criticism may urge to the proposed legislation. The committee, however, believing that the bill in its present form will be construed as including only those whose labor or service is manual in character, and being very desirous that the bill become a law before the adjournment, have reported the bill without change. Id. at 464-65 (citation omitted). For analysis suggesting that the Court misread this legislative history, see Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1844-50 (1998). For a contrary view, see Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000). 58. Holy Trinity Church, 143 U.S. at 459 (emphasis added). Invoking deeply held social attitudes, the Court also found that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people." Id. at 465. 59. Id. at 472. 60. Id. at 459. 61. For example, the most influential twentieth-century precedent for strong purposivism, United States v. American Trucking Ass'ns, 310 U.S. 534 (1940), emphasized that "the function of the courts" in cases of statutory interpretation "is to construe the language so as to give effect to the intent of Congress." Id. at 542-44. In keeping with Holy Trinity Church, the American Trucking Court instructed judges to avoid results "plainly at variance with the policy of the legislation as a whole," but only to ensure that they reached the "correct conclusion" about what Congress actually intended. Id. at 543-44 (citation omitted). As the Court thus explained: When [plain] meaning has led to absurd or futile results, . . . this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one "plainly at variance with the policy of the legislation as a whole" this Court has followed that purpose, rather than the literal words. When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no "rule of law" which forbids its use, however clear the words may appear on "superficial examination." Id. at 543-44 (citations omitted). For further examples of this approach, see supra note 46. It should be noted that the Court continues to invoke this method on occasion, though without reference to Holy Trinity Church. See supra note 4. 62. As Judge Easterbrook once put it: We are supposed to be faithful agents, not independent principals. Having a HeinOnline -- 101 Colum. L. Rev. 15 2001
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purposivists, textualists focus primarily on "'objectified' intent-the intent that a reasonable person would gather from the text of the law,
placed alongside the remainder of the corpusjuris. ' 63 Textualists believe
that legislation supposes that legislators and judges are part of a common social and linguistic community, with shared conventions for communication. 64 Accordingly, they argue that a faithful agent's job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community. 65
wide field to play-not only the statute but also the debates, not only the rules but also the values they advance, and so on-liberates judges. This is objectionable on grounds of democratic theory as well as on grounds of predictability. Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 63 (1994) [hereinafter Easterbrook, Text, History, and Structure]; see also Frank H. Easterbrook, Foreword: The Court and the Economic System, 98 Harv. L. Rev. 4, 60 (1984) [hereinafter Easterbrook, The Court and the Economic System] (' Judges must be honest agents of the political branches. They carry out decisions they do not make."). 63. Antonin Scalia, A Matter of Interpretation 17 (1997) [hereinafter Scalia, Matter of Interpretation]. 64. Textualist theory thus incorporates the insights of modern language theory often associated with Ludwig Wittgenstein. Ludwig Wittgenstein, Philosophical Investigations 138-242 (G.E.M. Anscombe trans., 1963) (1953) (showing that language lacks intrinsic meaning); see also Cont'l Can Co. v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund, 916 F.2d 1154, 1157 (7th Cir. 1990) (Easterbrook, J.) ("You don't have to be Ludwig Wittgenstein or Hans-Georg Cadamer to know that succesful communication depends on meanings shared by interpretive communities."); Schauer, Statutory Construction, supra note 8, at 251 ("[Mlembers of a linguistic community ... are members of that community precisely because they are able to make minimal sense out of some number of signs standing alone."); Jeremy Waldron, Legislators' Intentions and Unintentional Legislation, in Law and Interpretation 339 (Andrei Marmor ed., 1995) (exlaining that words have meaning because of the existence of "a community in which it is well known that members of that community commonly use such words to produce a certain effect or response in their audience"). 65. As Professor Waldron thus notes: A legislator who votes for (or against) a provision like 'No vehicle shall be permitted to enter any state or municipal park' does so on the assumption thatto put it crudely-what the words mean to him is identical to what they will mean to those to whom they are addressed (in the event that the provision is passed) .... That such assumptions pervade the legislative process shows how much law depends on language, on the shared conventions that constitute a language, and on the reciprocity of intentions that conventions comprise. Waldron, supra note 64, at 339. Because of the importance of the premise that textualists are faithful agent theorists, this point merits brief elaboration. Textualists deny that anyone can meaningfully determine "actual" legislative intent. See infra text accompanying notes 74-78. They do not, however, believe that the concept of "intent" is irrelevant to interpretation. Nor could they. Although textualists have not explicitly made the connection, their assumptions about objectified legislative "intent" correspond significantly to those of modern positivism. For example, while arguing that actual legislative intent is an incoherent concept, Joseph Raz emphasizes that "[i]t makes no sense to give any person or body law-making power unless it is assumed that the law they make is the law they intended to make." Joseph Raz, Intention in Interpretation, in The HeinOnline -- 101 Colum. L. Rev. 16 2001
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The contrast between strong purposivism and textualism comes into play only when a statutory text is clear according to these shared conventions. When most of the relevant community would agree on the meaning of a text as applied to a particular fact situation, that text is considered clear in context. 66 While textualists will consult a statute's purpose to clarify an ambiguity,67 they will not attempt to improve upon a clear text by consulting its purpose. 68 Hence, barring "absurd" re69 Suits, textualists believe that "[w] hen the words of a statute are unam70 biguous, .. . 'judicial inquiry is complete.'
Autonomy of Law 258, 264-66, 269 (Robert George ed., 1996). As he explains: [T]o assume that the law made by legislation is not the one intended by the legislator, we must assume that he cannot predict what law he is making when the legislature passes any piece of legislation. But if so, why does it matter who the members of the legislature are, whether they are democratically elected or not, whether they represent different regions in the country, or classes in the population, whether they are adults or children, sane or insane? Since the law they will end by making does not represent their intentions, the fact that their intentions are foolish or wise, partial or impartial, self-serving or public spirited, makes no difference. Id. at 258-59. Thus, if actual legislative intent is meaningless, an alternative conception of intent is needed. Raz explains that the minimum condition for meaningful legislative supremacy is satisfied if legislators intend to enact a law that will be decoded according to prevailing interpretive conventions. Ascribing that sort of objectified intent to legislators offers an intelligible way to hold them accountable for the laws they have passed, whether or not they have any actual intent, singly or collectively, respecting its details. Id. at 267 ("Legislators who have the minimal intention ... know how to find out what law they are making. All they have to do is establish the meaning of the text... when understood as it will be according to their legal culture assuming that it will be promulgated on that occasion."). 66. Judge Easterbrook provides a specific example: Consider, for example, whether a statute providing for the leashing of "dogs" also requires the leashing of cats (because the statute really, covers the category "animals") .... Most people would say that the statute does not go beyond dogs, because after all the verbal torturing of the words has been completed it is still too plain for argument what the statute means. Easterbrook, Statutes' Domains, supra note 8, at 535 (footnote omitted). 67. See, e.g., Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.Kent L. Rev. 441, 443 (1990) [hereinafter Easterbrook, Legislative History] ("Because laws themselves do not have purposes or spirits-only the authors are sentient-it may be essential to mine the context of the utterance out of the debates, just as we learn the limits of a holding from reading the entire opinion."); Scalia, Judicial Deference, supra note 3, at 515 (noting that judges often choose one alternative interpretation over another that is less consistent with "the reason or purpose of the statute"); see also United States v. Fausto, 484 U.S. 439, 453 (1988) (Scalia, J.) (describing the "classic judicial task of reconciling many laws enacted over time, and getting them to 'make sense' in combination"). 68. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1480 n.3 (1987) [hereinafter Eskridge, Dynamic Interpretation I] (" 'Textualism' can be defended as the best evidence of what the legislature actually meant when it enacted the statute."). 69. See infra Part IV.C. 70. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (Thomas, J.) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)); see also Nat'l Tax Credit Partners, L.P. v. Havlik, 20 F.3d 705, 707 (7th Cir. 1994) (Easterbrook, J.) ("Knowing the purpose behind a HeinOnline -- 101 Colum. L. Rev. 17 2001
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The root of the textualist position is, as I have said, in straightforward faithful agent theory. In defense of this position, however, the most consistentjudicial textualists, Judge Easterbrook andJustice Scalia, have also invoked the insights of public choice theory, a branch of political science that draws on economics and game theory to explain governmental behavior. 7 1 First, building on the interest-group branch of public choice theory, they argue that many statutes result from bargains struck among interest groups competing for advantage in the legislative process. 72 Because statutory details may reflect only what competing groups could agree upon, legislation cannot be expected to pursue its purposes to their logical ends; accordingly, departing from a precise statutory text may do no more than disturb a carefully wrought legislative compromise. 73
rule may help a court decode an ambiguous text, but first there must be some ambiguity." (citations omitted)); Easterbrook, Statutes' Domains, supra note 8, at 539: To delve into the structure, purpose, and legislative history of the original statute is to engage in a sort of creation. It is to fill in blanks. And without some warrant-other than the existence of the blank-for a court to fill it in, the court has no authority to decide in favor of the party invoking the blank-containing statute. 71. See, e.g., Daniel A. Farber & Philip P. Frickey, Law and Public Choice 21-33, 47-62 (1991). 72. Specifically, interest-group theory suggests that interest groups purchase legislation through "campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes." William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & Econ. 875, 877 (1975); see also Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223, 227-33 (1986) (describing assumptions of interest-group theory); Richard A. Posner, Theories of Economic Regulation, 5 Bell J. Econ. & Mgmt. Sci. 335, 335, 341-43 (1974) (same); George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ. & Mgmt. Sci. 3, 3-7 (1971) (same). 73. As Judge Easterbrook noted: [N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice-and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law. Hrubec v. Nat'l R.R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995) (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987)); see also Easterbrook, The Court and the Economic System, supra note 62, at 46: If legislation grows out of compromises among special interests . . . a court cannot add enforcement to get more of what Congress wanted. What Congress wanted was the compromise, not the objectives of the contending interests. ... When a court observes that Congress propelled Group X part way to its desired end, it cannot assist Group X farther along the journey without undoing the structure of the deal. For similar descriptions of this critique of purposivism, see, for example, Eskridge & Frickey, Statutory Interpretation, supra note 47, at 335 ("Some statutes are little else but backroom deals .... And when a court uses purposivist analysis to elaborate a statute, it may actually undo a deliberate and precisely calibrated deal worked out in the legislative process."); Philip P. Frickey, From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation, 77 Minn. L. Rev. 241, 251 (1992) (discussing claim that judges HeinOnline -- 101 Colum. L. Rev. 18 2001
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Second, textualists contend thatjudges simply cannot discover an actual (but unexpressed) legislative "intent. '74 Relying on the social choice theory developed by Kenneth Arrow and others, 7 5 textualists argue that it is difficult, if not impossible, to aggregate individual legislators' preferences into a coherent collective decision; moreover, legislative outcomes frequently turn on non-substantive factors, such as the sequence of alternatives presented (agenda manipulation) or the practice of strategic voting (logrolling) .76 Although such considerations are not "total bars to judicial understanding," they are "so integral to the legislative process that judicial predictions of how the legislature would have decided issues 77 it did not in fact decide are bound to be little more than wild guesses."
could "reach [the] wrong results" by "promoting a public policy purpose gleaned from the statute rather than following the true lines of legislative compromise"). 74. See Easterbrook, Text, History, and Structure, supra note 62, at 68 ("Intent is elusive for a natural person, fictive for a collective body."); Scalia, Judicial Deference, supra note 3, at 517 (arguing that "the quest for the 'genuine' legislative intent is probably a wildgoose chase"). 75. Arrovian social choice theory uses the insights of game theory to explain political behavior. Kenneth J. Arrow, Social Choice and Individual Values 2-4 (2d ed. 1963); see also Farber & Frickey, supra note 71, at 38-42 (explaining Arrow's Theorem and its implications). 76. Easterbrook, Statutes' Domains, supra note 8, at 547-48. Arrow's Theorem suggests that if multiple legislators have multiple preferences, majority rule will not necessarily yield a transitive ordering of voting choices, and alternatives may cycle. See Farber & Frickey, supra note 71, at 38-39; Kenneth A. Shepsle, Congress Is a "They," Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239, 241-44 (1992). The following illustration is typical: [A]ssume three voters with the following preference orderings: (1) voter 1 prefers A > B > C; (2) voter 2 prefers B > C > A; and (3) voter 3 prefers C > A > B. In a vote between A and B, A wins 2-1. In a vote between B and C, B wins 2-1. And in a vote between C and A, C wins 2-1. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale L.J. 31, 101 n.261 (1991). Unless the process is structured to produce a final vote, majorities could cycle endlessly. If the first vote produces choice A, voters 2 and 3 can vote to reconsider and select option C; at that point, voters 1 and 2 will want to shift their votes to option B; and so forth. Given the need for a final vote and the importance of the alternatives presented in each pairwise vote, the outcome will frequently depend on voting sequence (agenda control) and strategic voting. Farber & Frickey, supra note 71, at 39-41. If voter 1 sets the agenda in a two-round vote, he or she can schedule the first vote between B and C,so that voters I and 2 vote for choice B. In the second round of voting (between B and A), voters 1 and 3 will combine to vote for A. Hence, A will prevail even though voters 2 and 3 prefer C to A. In addition, voter 2 could secure a higher preference by strategically voting for C in the first round. If voter 2 votes strategically in round one, then voters 2 and 3 will both vote for choice C in round two (between C and A). In that case, alternative C would prevail even though voters 1 and 2 both prefer B. 77. Easterbrook, Statutes' Domains, supra note 8, at 548. As Easterbrook points out: Although legislators have individual lists of desires, priorities, and preferences, it turns out to be difficult, sometimes impossible, to aggregate these lists into a coherent collective choice. Every system of voting has flaws. The one used by legislatures is particularly dependent on the order in which decisions are made. Legislatures customarily consider proposals one at a time and then vote them up or down. This method disregards third or fourth options and the intensity with HeinOnline -- 101 Colum. L. Rev. 19 2001
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If actual legislative outcomes turn on procedural maneuvers and strategic behavior, judges cannot reliably reconstruct what Congress would have "intended" had it been put to the choice between text and apparent 78 purpose. Third, textualists contend that enforcing the purpose, rather than the letter, of the law may defeat the legislature's basic decision to use rules rather than standards to articulate its objectives. 79 As Judge Easterbrook has explained, "[s]ometimes Congress specifies values or ends, things for the executive and judicial branches to achieve, but often it specifies means, creating loopholes but greater certainty. 80 Relying on "an imputed 'spirit' to convert one approach into another dishonors the legislative choice as effectively as expressly refusing to follow the law."8 1 Or as Justice Scalia once put it, judges "are bound, not only by the ultiwhich legislators prefer one option over another. Additional options can be considered only in sequence, and this makes the order of decision vital. It is fairly easy to show that someone with control of the agenda can manipulate the choice so that the legislature adopts proposals that only a minority support. The existence of agenda control makes it impossible for a court-even one that knows each legislator's complete table of preferences-to say what the whole body would have done with a proposal it did not consider in fact. Id. at 547-48 (citations omitted). 78. Put another way, if one accepts these premises, the very notion "that statutes have purposes or embody policies becomes quite problematic, since the content of the statute simply reflects the haphazard effect of strategic behavior and procedural rules." Farber & Frickey, supra note 71, at 41 (discussing the implications of Arrovian public choice theory). For an excellent discussion casting doubt upon the empirical basis for Arrow's Theorem, see id. at 47-55. 79. Ehrlich and Posner explain that a "standard" is "a general criterion of social choice," such as efficiency or reasonableness. Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257, 258 (1974). A "rule," in contrast, "withdraws from the decision maker's consideration one or more of the circumstances that would be relevant to decision." Id. Thus, if a statute imposed liability for "negligence," it would effect its ends through a standard. Id. If a statute specified that a driver was liable for colliding with another car while "driving within 100 feet of the preceding car," it would operate by rule. Id. "The difference between a rule and a standard is a matter of degree-the degree of precision." Id. 80. Easterbrook, Text, History, and Structure, supra note 62, at 68. 81. Id.; see also Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) ("Section 2 of the Voting Rights Act of 1965 is not some all-purpose weapon for wellintentioned judges to wield as they please in the battle against discrimination."). Easterbrook illuminates the point as follows: A legislature that seeks to achieve Goal X can do so in one of two ways. First, it can identify the goal and instruct courts or agencies to design rules to achieve the goal. In that event, the subsequent selection of rules implements the actual legislative decision, even if the rules are not what the legislature would have selected itself. The second approach is for the legislature to pick the rules. It pursues Goal X by Rule Y. The selection of Y is a measure of what Goal X was worth to the legislature, of how best to achieve X, and of where to stop in pursuit of X. Like any other rule, Y is bound to be imprecise, to be over- and underinclusive. This is not a good reason for a court, observing the inevitable imprecision, to add to or subtract from Rule Yon the argument that, by doing so, it can get more of Goal X. The judicial selection of means to pursue X displaces HeinOnline -- 101 Colum. L. Rev. 20 2001
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mate purposes Congress has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes."8 2 For these reasons, textualists believe that the only constitutionally safe course 83 forjudges is to take Congress at its word when it expresses itself clearly. Textualists have had a noticeable impact on the Court's decisions. Their claims about the character of the legislative process have made it harder for strongly purposivist Justices to maintain that they are reshaping a clear statutory text in the name of legislative intent, rather than on their own account. Hence, the Court is far less inclined to forsake a clear text in the name of its apparent background purpose. 8 4 And it is far more inclined to give decisive weight to dictionaries and canons of construction, than to legislative purpose or intent.85 These developments, in
and directly overrides the legislative selection of ways to obtain X. It denies to legislatures the choice of creating or withholding gapfilling authority. Easterbrook, Statutes' Domains, supra note 8, at 546-47. 82. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 n.4 (1994); see also Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986) (Easterbrook,J.) ("Courts should confine their attention to the purposes Congress sought to achieve by the words it used. We interpret texts. The invocation of disembodied purposes, reasons cut loose from language, is a sure way to frustrate rather than implement these texts."). 83. See Aleinikoff, supra note 47, at 30-31 (noting that textualists argue that "[i]f legislative intent doesn't exist (because statutes are merely unprincipled bargains), don't look for it; concentrate on the only thing the legislature actually enacted-the words of the statute"). 84. See, e.g., Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (Scalia, J.) ("[A]ssuming ...that Congress did not 'envision that the [Americans with Disabilities Act] would be applied to state prisoners,' in the context of an unambiguous statutory text that is irrelevant." (citation omitted)); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (noting that "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed"); Brogan v. United States, 522 U.S. 398, 403 (1998) (Scalia, J.) ("[I]t is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedy-even assuming that it is possible to identify that evil from something other than the text of the statute itself."); W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991) (Scalia, J.) ("[T]he purpose of a statute includes not only what it sets out to change, but also what it resolves to leave alone. The best evidence of that purpose is the statutory text adopted by both Houses of Congress and submitted to the President." (citation omitted)). For the articulation of similar premises in opinions written by non-textualist Justices, see Bates v. United States, 522 U.S. 23, 29 (1997) (Ginsburg, J.) ("The text of 1097(a) does not include an 'intent to defraud' state of mind requirement, and we ordinarily resist reading words or elements into a statute that do not appear on its face."); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47 (1990) (Blackmun, J.) ("[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed . . . is the very essence of legislative choice-and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." (quoting Rodriguez v. United States, 480 U.S. 522, 525-26 (1987))). 85. For an excellent discussion of the Court's increased use of dictionaries and canons of construction, see Merrill, Textualism, supra note 5, at 356-63; see also Hans W. Baade, Time and Meaning: Notes on the Intertemporal Law of Statutory Construction and Constitutional Interpretation, 43 Am.J. Comp. L. 319, 324 (1995) (discussing trend toward HeinOnline -- 101 Colum. L. Rev. 21 2001
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turn, have induced those who place a premium on flexibility and coherence to seek alternative bases for strongly purposive interpretation. C. The Equity of the Statute The most important alternative justification for atextual and purposive interpretation relates to an ancient common law doctrine: the equity of the statute. As discussed below, when applied, that doctrine authorized courts to extend a clear statute to reach omitted cases that fell within its ratio or purpose, and conversely, to imply exceptions to such a statute when the text would inflict harsh results that did not serve the statutory 8 purpose. 6 Responding to the new textualism, a number of scholars have tried to invoke the doctrine as the basis for a distinct theory of judicial power, one that rejects the faithful agent theory on which the current interpretive debate has rested.8 7 In particular, this scholarship assumes that Article III of the Constitution does not confine federal judges to decoding legislative intent, but assigns to them all the ancient common law
textualism); Gregory E. Maggs, The Secret Decline of Legislative History: Has Someone Heard a Voice Crying in the Wilderness?, 1994 Pub. Int. L. Rev. 57, 58 (same); RichardJ. Pierce, Jr., The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State, 95 Colum. L. Rev. 749, 750 (1995) (same); Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 Sup. Ct. Rev. 429, 444-45 (same). As one recent survey discovered: In the 1970s, the Court turned to dictionaries in forty opinions to define fifty terms. In the 1980s, the Court relied on dictionaries nearly 100 times to define nearly 125 terms. In the 1990s, the Court has continued to increase its reliance on dictionaries to define terms. From 1990 through the 1997-1998 term, the Court cited dictionaries in nearly 180 opinions to define more than 220 terms. Projecting through the end of the decade, the Court is on a pace to cite dictionaries in 210 different opinions to define 260 different terms in the 1990s. Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court's Use of Dictionaries, 47 Buff. L. Rev. 227, 252-60 (1999) (footnotes omitted). Putting this trend in a historical context, Thumma and Kirchmeier note that "at the Court's present rate, the decade of the 1990s will give rise to nearly half of all the opinions in the Court's two-century history where a Justice has relied on a dictionary." Id. at 260. For an opposing perspective on the influence of textualism, see Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 Wis. L. Rev. 235, 236 (arguing that the influence of textualism has begun to decline). 86. See infra Part II.A. 87. See William N. Eskridge, Jr., Dynamic Statutory Interpretation 116-18 (1994) [hereinafter Eskridge, Dynamic Interpretation II]; Eskridge, Unknown Ideal, supra note 33, at 1522-23; William D. Popkin, The Collaborative Model of Statutory Interpretation, 61 S. Cal. L. Rev. 541, 585 (1988) [hereinafter Popkin, Collaborative Model]; Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. L. Rev. 1023, 1095 (1998). The recent writings represent a revival of sorts because they build upon earlytwentieth-century scholarship of a similar stripe. See Frank E. Horack, Jr., Statutory Interpretation-Light from Plowden's Reports, 19 Ky. L.J. 211, 212 (1931) [hereinafter Horack, Plowden's Reports]; James McCauley Landis, Statutes and the Sources of Law, in Harvard Legal Essays 213, 214-18 (Roscoe Pound ed., 1934) [hereinafter Landis, Sources of Law]; W.H. Loyd, The Equity of a Statute, 58 U. Pa. L. Rev. 76, 85-86 (1909). HeinOnline -- 101 Colum. L. Rev. 22 2001
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powers of interpretation. 88 On that premise, federal judges serve as Congress's partners, rather than simply as its faithful agents, in the articulation and development of statutory policy.8 9 Of most interest here, reviving that doctrine would mimic the technique of strong purposivism, but would not invoke its traditional intentionalistjustification.9 0 By grounding this method in a theory of broad judicial power, rather than legislative intent, the new scholarship would render much, if not all, of the textualists' critique of strong purposivism beside the point. Although raised anew in the context of a modern debate, it should be emphasized that the doctrine of the equity of the statute reflects a deep intellectual and historical tradition. In the early 1930s, after legal realism had cast significant doubt on the utility of the idea of legislative intent,9 1 James Landis proposed the equity of the statute as an alternative basis for extra-textual, purposive interpretation.9 2 In particular, while he emphasized that "[g] rammatical interpretation is giving way to functional construction," 93 Landis denounced the kind of intentionalist reasoning applied in Holy Trinity Church as a form of "dissembling" that "prevent[s] the development of an appropriate juristic approach towards statutes as a
88. See, e.g., Eskridge, Unknown Ideal, supra note 33, at 1522-23 (arguing that the judicial power of the federal courts incorporates common law equitable powers in relation to statutes); Popkin, Collaborative Model, supra note 87, at 585 ("There is ... a federal common law power to work out the meaning of statutes on the basis of policies not mandated by the statute and within boundaries not set by the legislature."); Siegel, supra note 87, at 1095 ("The 'judicial power,' as it would have been understood by those framing the Constitution, included, as part of its power to construe statutes, some power to maintain coherence in the law, which is, inescapably, a law making function .... "). 89. See Dorf, supra note 2, at 19 ("Students of constitutional law are familiar with an alternative conception of democracy in which courts play a vital role as partners with, rather than mere servants of, the legislature."); cf. Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 1-38 (1996) (elaborating on the partnership theory). 90. See Eskridge, Unknown Ideal, supra note 33, at 1523. 91. The most influential contribution came from Max Radin, who explained: The chances that of several hundred men each will have exactly the same determinate situations in mind as possible reductions of a given determinable, are infinitesimally small. The chance is still smaller that a given determinate, the litigated issue, will not only be within the minds of all these men but will be certain to be selected by all of them as the present limit to which the determinable should be narrowed.... Even if the contents of the minds of the legislature were uniform, we have no means of knowing that content except by the external utterances or behavior of these hundreds of men, and in almost every case the only external act is the extremely ambiguous one of acquiescence, which may be motivated in literally hundreds of ways, and which by itself indicates little or nothing of the pictures which the statutory descriptions imply. Radin, Statutory Interpretation, supra note 40, at 870-71. 92. Landis, Sources of Law, supra note 87, at 214-18. 93. Id. at 233.
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source of 'common law."' 94 Explicitly invoking English legal history, he argued that a more appropriate attitude toward judicial interpretation builds on the equity of the statute, under which "exceptions dictated by sound policy were written by judges into loose statutory generalizations, and, on the other hand, situations were brought within the reach of the statute that admittedly lay without its express terms. '95 That technique, he explained, was self-consciously purposive; English judges construed texts to ensure that the "same mischief' received "like treatment in like situations. '96 Perhaps most importantly, the English practice served as an example for early American judges and "for a time ...held considerable sway in American courts."9 7 Landis thus concluded that the passive, lawfinding approach of twentieth-century American judges reflected an un98 desirable break from relevant interpretive traditions. Subsequent writers have embraced this approach. Indeed, the basic argument has attracted a list of adherents that reads like a Whos Who of twentieth-century interpretive scholars, including Harlan Fiske Stone, 99 Max Radin,1 00 Guido Calabresi, 10 l Ronald Dworkin, 10 2 William Es94. Id. at 219; see also id. at 236 n.14 (stating that the "technique" used in Holy Trinity was, "except for integrity of approach.... essentially similar to that" used in the sixteenthcentury English cases). 95. Id. at 215. 96. Id. 97. Id. at 218. 98. See id. at 214-15. 99. Rejecting the "illusion that in interpreting [statutes] our only task is to discover the legislative will," then-Justice Stone called upon his fellow judges to "treat a statute much more as we treat a judicial precedent, as both a declaration and a source of law, and as a premise for legal reasoning." Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 13, 15 (1936). 100. After a conversion from realism, Radin rejected the premise that statutory interpretation depends on "the discovery of the meaning of the words" or, for that matter, "of the 'intention' or the 'will' of the legislature." Max Radin, A Short Way with Statutes, 56 Harv. L. Rev. 388, 406 (1942). The legislature of course has authority to prescribe a purpose that binds the community. Id. at 398. But judges in our constitutional system have shared responsibility for seeing that purpose fulfilled. Id. at 395 ("It was the business of the legislature to get the statute on the books. When that was completed, the task of the coordinate branches began."). Hence, "if the purpose is clear, the implemental part of the statute should be subordinated to it." Id. at 407. Radin rested his separation-of-powers theory, in part, on "the Anglo-American tradition of a court." Id. at 396. 101. See Guido Calabresi, A Common Law for the Age of Statutes 7 (1982) (proposing "a new relationship between courts and statutes, a relationship that would enable us to retain legislative initiative in lawmaking, characteristic of the twentieth century, while restoring to courts their common law function of seeing to it that the law is kept up to date"). 102. See Ronald Dworkin, Law's Empire 313 (1986): Hercules [the ideal judge] will use much the same techniques of interpretation to read statutes that he uses to decide common-law cases ....[H]e will see his own role as fundamentally the creative one of a partner continuing to develop, in what he believes is the best way, the statutory scheme Congress began.
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kridge, 10 3 and Peter Strauss. 10 4 The common law model of interpretation has perhaps had such appeal because it makes statutes more dynamic by extending their "policy" to unforeseen cases, renders them more coherent by treating like cases alike, and gives judges discretion to smooth the sharp edges of generally framed rules. It accomplishes all of this, moreover, without requiring a difficult search for legislative intent. The persistence of this theory of judicial power suggests that it resonates with a powerful impulse in the American legal tradition, despite its present unconventionality. Of immediate interest here, the most recent work in this line of scholarship seeks to add the legitimacy of a constitutional pedigree to the equity of the statute. In particular, it takes Landis's historical findings a step farther, explicitly arguing that the equity of the statute underlies the 10 5 original understanding of "the judicial Power" to say what the law is. This argument rests upon three important historical premises. First, because English law informed the Founders' background understanding of common law terms, the equity of the statute doctrine (which was endorsed, for example, in Blackstone's Commentaries) undoubtedly influenced their conception of "the judicial Power."1 0 6 Second, during the ratification debates over the U.S. Constitution, important public writings assumed that federal judges would interpret statutes equitably. 10 7 Third,
103. See Eskridge, Dynamic Interpretation II, supra note 87, at 116-18 (discussing willingness of Blackstone and Framers to accept statutory interpreatations beyond or even against legislative expectations); Eskridge, Dynamic Interpretation I, supra note 68, at 1502-03 (approving of the "flexible ... approach to statutes" taken by Blackstone and Hamilton); Eskridge, Unknown Ideal, supra note 33, at 1522-32 (endorsing "common law, equitable [statutory] interpretation"). For further discussion of Professor Eskridge's position, see infra text accompanying notes 105-108, 151, 279, 305, 314-316, 336. 104. See Strauss, supra note 85, at 437 ("Legislative influence and statutes are extended when statutory policy becomes the basis for analogical reasoning to decide cases that have not been provided for. The judicial function is also augmented if the world in which judges act to promote coherence includes statutory as well as judge-made law."). 105. See Eskridge, Dynamic Interpretation II, supra note 87, at 116-18 ("Eighteenthcentury Anglo-American judicial interpretation was not dogmatically originalist."); Eskridge, Dynamic Interpretation I, supra note 68, at 1502-03 (same); Eskridge, Unknown Ideal, supra note 33, at 1522-32 (discussing eighteenth-century understanding of "the judicial Power"); see also Popkin, Collaborative Model, supra note 87, at 585 ("There is... a federal common law power to work out the meaning of statutes on the basis of policies not mandated by the statute and within boundaries not set by the legislature."); Siegel, supra note 87, at 1095 ("The power to depart in some cases from statutory text is a part of the 'judicial Power' that the Constitution assigns to the courts."). 106. See Eskridge, Dynamic Interpretation II, supra note 87, at 116 (discussing Blackstone's support of using equity in statutory interpretation); Eskridge, Dynamic Interpretation I, supra note 68, at 1502 (same); Eskridge, Unknown Ideal, supra note 33, at 1523-24 (same); Siegel, supra note 87, at 1095-96 ("Blackstone recognized expressly that the judicial function permitted courts to deviate from the language of statutes in some
cases.").
107. See Eskridge, Dynamic Interpretation II, supra note 87, at 117-18 ("Hamilton was willing to interpret [statutes] against [original legislative] expectations."); Eskridge, Dynamic Interpretation I, supra note 68, at 1502-03 (stating that Hamilton favored a
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early American judicial decisions, both state and federal, in fact applied the equity of the statute.108 In light of this evidence, proponents of the equity of the statute argue that "the judicial Power" more likely assimilated its atextual, purposive methods than the competing techniques of modern textualism. I consider this evidence in detail below. At present, however, it is important to note that because of its explicitly originalist emphasis, the equity of the statute argument should raise serious concerns for textualists. As noted, much of the textualist case against strong purposivism rests upon claims of superior legitimacy, proceeding from constitutionally grounded assumptions about the faithful agent theory.10 9 Statutory textualists, however, are typically also originalists in matters of constitutional 1 interpretation.1 0 In determining the original meaning of the Constitution, textualists often rely on the very types of evidence that have been cited in support of the equity of the statute. They acknowledge that English constitutional practice may inform the meaning of common law concepts imported into the U.S. Constitution; 1 1 that ratification debates
judicial power that would narrow unjust laws); Eskridge, Unknown Ideal, supra note 33, at 1529-31 (discussing writings of Madison and Hamilton). 108. See Eskridge, Dynamic Interpretation II, supra note 87, at 116-17 (citing Bracken v. Visitors of William and Mary College, 7 Va. (3 Call.) 573 (1790)); Eskridge, Unknown Ideal, supra note 33, at 1524-26 (citing various cases); Siegel, supra note 87, at 1096-98 (citing early federal cases illustrating that "Uludicial deviation from statutory text may ... be necessary"). 109. See, e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 469 (1998) (Scalia, J., dissenting) (arguing that even if a statute "is improvident or ill conceived, it is not the province of this Court to distort its fair meaning (or to sanction the Executive's distortion) so that a better law will result"); Scalia, Matter of Interpretation, supra note 63, at 9-10, 22-23 (contending that purposive, atextual interpretation is incompatible with democratic principles implicit in the Constitution); see also supra note 62 (describing Easterbrook's constitutional theory). 110. See, e.g., McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 359 (1995) (Thomas, J., concurring) ("[W]e must be guided by . . . original meaning, for '[t]he Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now."' (quoting South Carolina v. United States, 199 U.S. 437, 448 (1905))); Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1121 (1998) ("The fundamental theory of political legitimacy in the United States is contractarian, and contractarian views imply originalist, if not necessarily textualist, interpretation by the judicial branch."); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 862 (1989) ("Having described what I consider the principal difficulties with the originalist and nonoriginalist approaches, I suppose I owe it to the listener to say which of the two evils I prefer. It is originalism."). 111. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 931-33 (1995) (Thomas, J.) (referring to English common law to help determine content of Fourth Amendment); United States v. Williams, 504 U.S. 36, 51 (1992) (Scalia, J.) (relying in part on "prevailing [grand jury] practice in 18th-century England" to interpret the Fifth Amendment); Holland v. Illinois, 493 U.S. 474, 481 (1990) (Scalia, J.) (citing Blackstone's description of peremptory challenges to inform meaning of Sixth Amendment); Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (Scalia, J., plurality opinion) (relying on common law presumptions of criminal capacity to inform original meaning of Eighth Amendment). Along similar lines, in a recent opinion for the Court, Justice Scalia consulted prior English
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may offer persuasive insights into the public meaning of the Constitution; 112 and that early American governmental practice may help settle the meaning of open-ended constitutional terms. 1 13 Accordingly, if the equity of the statute, in fact, reflects a more traditional tradition than the faithful agent theory, that fact would strike at the heart of the textualist critique. Textualists, however, have yet to examine their constitutional assumptions about the judicial power in light of the substantial historical questions raised by the equity of the statute. II.
ENGLISH ANTECEDENTS TO "THE JUDICIAL POWER"
To assess the historical claims raised by the equity of the statute, one must begin with the English common law background. For this purpose I fully assume here that traditional English judicial practice may have relevance to "the judicial Power of the United States." I assume, in other words, asJustice Frankfurter once wrote, that "if a word is obviously transplanted from another legal source, whether the common law or other 1 legislation, it brings the old soil with it." 14 On that assumption, the Court has often relied on English common law to determine the meaning of terms or structures in the U.S. Constitution that have an English ancestry.115 This practice reflects a defensible constitutional presumption. Those who framed and ratified the Constitution "were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary."1 16 The legal sources they consulted often were English in origin.1 1 7 In short, English law undoubtedly informed their understanding of the government they were forging. Hence, if the equity of the statute reflected a settled common law understanding of what judges do
practice to determine the meaning of the Judiciary Act of 1789, which in relevant part established federal jurisdiction over "all suits . . . in equity." Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (Scalia, J.) (quoting Act of Sept. 24, 1789, ch. 20, 11, 1 Stat. 73, 78). 112. See, e.g., Edmond v. United States, 520 U.S. 651, 659 (1997) (ScaliaJ.) (relying on The Federalist to confirm the apparent purposes of the Appointments Clause); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221-22 (1995) (Scalia, J.) (using The Federalistto help demonstrate that the Constitution sought to insulate the exercise of core judicial functions from direct legislative control); Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98 (1994) (ThomasJ.) (relying on The Federalistto help identify the aims of the Commerce Clause). 113. See, e.g., Printz v. United States, 521 U.S. 898,905 (1997) (Scalia,J.) (noting that early congressional enactments provide contemporaneous and weighty evidence of the Constitution's meaning" (citations and internal quotations omitted)); Lee v. Weissman, 505 U.S. 577, 632-36 (1992) (Scalia,J., dissenting) (interpreting the Establishment Clause in light of deeply rooted practice). 114. Frankfurter, Reflections, supra note 7, at 537. 115. See infra notes 119 & 228. 116. Ex Parte Grossman, 267 U.S. 87, 109 (1925) (Taft, C.J.). 117. For example, the Founders widely read Blackstone's Commentaries. See infra note
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when they implement statutes, it may supply probative evidence of the Founders' own understanding of "the judicial Power." Yet accepting that line of reasoning merely initiates, rather than completes, the necessary inquiry. English history must be used with careful discernment. Although many features of the U.S. Constitution reflect English legal assumptions, many others broke with those assumptions, either implicitly or explicitly. 118 The U.S. Constitution does not replicate the limited monarchical government from which this nation broke free. 119 Rather, it is built on its own carefully designed system of sepa118. For example, Robert Cover has shown that St. George Tucker's 1803 edition of Blackstone reflected a strong American dissatisfaction with the monarchical tendencies of the Commentaries. See Robert M. Cover, Book Review, 70 Colum. L. Rev. 1475, 1477-86 (1970) (reviewing St. George Tucker, Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (Rothman Reprint 1969) (1803)). As Professor Cover noted: Tucker... remained troubled not so much by the content of the Commentaries as a treatise, but by its jurisprudence and political philosophy. The American Revolution had, in large measure, been ideologically justified by the repudiation of two basic British tenets: first, the rejection of British views concerning the nature and locus of sovereignty; second, the rejection of the British Constitution as a near-perfect, or even a relatively good, embodiment of political philosophy. Id. at 1477-78; see also Grosjean v. Am. Press Co., 297 U.S. 233, 248-49 (1936) ("[T]he range of a constitutional provision phrased in terms of the common law sometimes may be fixed by recourse to the applicable rules of that law. But... the common law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions." (citation omitted)); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277 (1855) (defining due process in light of the "settled usages and modes of proceeding existing in the common and statue [sic] law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country"). 119. For example, the Court sometimes uses the prerogatives of the Crown to define aspects of the executive power vested in the President by Article II. See, e.g., Myers v. United States, 272 U.S. 52, 118 (1926) ("In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words 'executive power' as including both."); United States v. Wilson, 32 U.S. (7 Pet.) 149, 159-60 (1833) (Marshall, C.J.): As [the pardon] power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. It has also been found, however, that many such prerogatives were not transferred to the President under our constitutional structure. See, e.g., Clinton v. Jones, 520 U.S. 681, 697 n.24 (1997) (noting that "the common-law fiction that '[t]he king... is not only incapable of doing wrong, but even of thinking wrong,' was rejected at the birth of the Republic" (quoting 1 Blackstone, supra note 9, at *246)); Belknap v. Schild, 161 U.S. 10, 15 (1896) ("It should be premised that our law differs from that of England as to the right of the government to use, without compensation, an invention for which it has granted letters patent .... [I]n this country, letters patent for inventions are not granted in the exercise of prerogative. . . ."); Langford v. United States, 101 U.S. 341, 343 (1879) (noting that the HeinOnline -- 101 Colum. L. Rev. 28 2001
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rated powers and checks and balances. Accordingly,,one must always ask whether a particular English legal practice, however relevant it may seem on preliminary examination, conforms to the often distinctive structural assumptions underlying the U.S. Constitution. Before ascribing an English practice to the federal government, therefore, one must first consider the origin and nature of that practice, the structural assumptions that underlay it, and the potentially contradictory assumptions of the 120 American constitutional structure. This Part will consider the relevant English circumstances. It will begin by showing that, in fact, the equity of the statute represented a deeply entrenched doctrine of judicial power in England, making it a possible source for understanding the meaning of "the judicial Power of the United States." Then, to provide a basis for comparison (in Part III) with the structural assumptions of the U.S. Constitution, it will examine the institutional setting in which the equity of the statute arose and flourished in England. This will lay the groundwork for concluding that the English doctrine of the equity of the statute reflected governmental assumptions that differed sharply from those underlying the American system of separated powers. A. The Equity of the Statute: English Roots The idea of equitable interpretation builds upon the Aristotelian premise that equity should mitigate the defects of generally worded laws. 12 1 This conception of equity initially assumed that alongside the positive law stand principles of assumed ethical superiority, and that those who administer the legal system can conform man-made law to those natural law principles. 122 Although the concept of equity may connote many things, in the sense important here it reflects the idea that judges should adjust the positive law to ensure that like cases are treated
English maxim that the Crown can do no wrong "cannot apply to [the President], because the Constitution admits that he may do wrong, and has provided, by the proceeding of impeachment, for his trial for wrong-doing, and his removal from office if found guilty"); Fleming v. Page, 50 U.S. (9 How.) 602, 618 (1850) ("[T]here is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them .... For an excellent discussion "): of the differences between presidential and royal power, see Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 12-20 (1993). 120. For a discussion of the relationship between constitutional structure and theories of statutory interpretation, see infra text accompanying notes 229-232. 121. See supra note 6. 122. See, e.g., Sir Henry Sumner Maine, Ancient Law 34 (new ed. 1930) (defining equity as "any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles."); 1 George Spence, The Equitable Jurisdiction of the Court of Chancery 326-27 (Philadelphia, Lea & Blanchard 1846) ("[T]he principles of Equity, or natural justice, have sometimes to be applied in contradiction to the positive law."). HeinOnline -- 101 Colum. L. Rev. 29 2001
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alike. 123 Most believe that this and other principles of equity passed into English jurisprudence through civilian law passed down from the Romans.1 24 And while the modern lawyer equates the term "equity" with the extraordinary relief dispensed by the chancellor, the doctrine of the equity of the statute also had a life of its own in the run-of-the-mill statu125 tory decisions rendered by the law courts. Scholars disagree about when the equity of the statute took hold in England. Some trace the doctrine as far back as the Year Book cases of the thirteenth and fourteenth centuries. t 26 Another school of thought contends that no meaningful concept of statutory interpretation, much less a doctrine of equitable interpretation, emerged until lawmaking and interpretation began to separate from each other in fifteenth-century England. 127 Nonetheless, modern critics of textualism can reasonably claim that, until relatively modern times (the late eighteenth or early nineteenth century), the English judiciary always felt a significant freedom to engage in atextual interpretation, and that the equity of the statute eventually came to justify that practice. In an excellent historical survey, Theodore Plucknett demonstrated that English judges in the early fourteenth century often read exceptions into unqualified statutory language and, conversely, extended specific legislation to cover omitted cases. 128 Perhaps because of the substantial conflation of lawmaking and judging that
123. In this regard, consider Bracton's highly influential description of equity: Equity is the bringing together of things, that which desires like right in like cases and puts all like things on an equality. Equity is, so to speak, uniformity, and turns upon matters of fact, that is, the words and acts of men. 2 Henrici de Bracton, On the Laws and Customs of England 25 (George E. Woodbine ed. & Samuel E. Thorne trans., Harvard Univ. Press 1968) (1569). Of course, modern defenses of the equity of the statute could be constructed on a non-natural law basis. 124. See 1 John Norton Pomeroy, A Treatise on Equity Jurisprudence As Administered in the United States of America 2 (San Francisco, A. L. Bancroft 1881) [hereinafter Pomeroy, Treatise]; Theodore Sedgwick, A Treatise on the Rules Which Govern the Interpretation and Application of Statutory and Constitutional Law 296 (New York, John S. Voorhies 1857) ("This idea of a natural equity to be observed in the construction of a statute, runs through all the great authors of the civil law .. "); Hans W. Baade, The Casus Omissus: A Pre-History of Statutory Analogy, 20 Syracuse J. Int'l L. & Com. 45, 65-69 (1994) [hereinafter Baade, Casus Omissus] (tracing civil law origins of the equity of the statute); Frederick J. de Sloovre, The Equity and Reason of a Statute, 21 Cornell L.Q. 591, 593 (1936) ("Equitable interpretation seems therefore to have evolved in England in part from . . . the Roman law."); Loyd, supra note 87, at 77 (describing Blackstone's use of quotes from Grotius to describe equity jurisdiction). 125. See Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws 28, at 57 (2d ed. 1911) [hereinafter Black, Handbook]; de Sloovre, supra note 124, at 596-97; Horack, Plowden's Reports, supra note 87, at 219. 126. See de Sloovire, supra note 124, at 592; Landis, Sources of Law, supra note 87, at 215-17; Loyd, supra note 87, at 77-78. 127. See S.E. Thorne, The Equity of a Statute and Heydon's Case, 31 111. L. Rev. 202, 204 (1936) [hereinafter Thorne, Equity of a Statute]. 128. Theodore F.T. Plucknett, Statutes and their Interpretation in the First Half of the Fourteenth Century 57-65, 72-81 (1980) [hereinafter Plucknett, Statutes]. HeinOnline -- 101 Colum. L. Rev. 30 2001
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marked that period, 29 early judges likely felt little need to justify this practice under the rubric of equity or, for that matter, to assert any formal justification for their interpretive practices.' 30 The important point, however, is that they initiated an atextual tradition of considerable resiliency. Even after the embryonic development of more distinctive governmental functions produced a stricter formal attitude toward statutes (a trend commonly attributed to the mid-fourteenth century),13 1 the judiciary did not abandon atextual interpretation, but ultimately re-rationalized its practice, at least in part, under the doctrine of the equity of the statute. 132 In one respect, the doctrine allowed judges to restrict the general words of a statute when they produced harsh results apparently outside the statute's policy.' 3 3 Perhaps the most familiar example of this is the equitable tolling of the statute of limitations or the many steps taken by judges to mitigate the rigor of the statute of frauds.' 34 Judges also brought omitted cases within the reach of a statute, even when they admittedly lay outside its express terms.1 35 Hence, a statute imposing liability on the "Warden of Fleet" might be extended, by its equity, to all jailers.' 3 6 Or a statute applicable to the City of London might be stretched to include other municipalities.' 37 Thus, as James Landis once put it, under the authority of the equity of the statute, "exceptions dic129. See infra text accompanying notes 164-169. 130. See, e.g., Plucknett, Statutes, supra note 128, at 164-66 (asserting no need for theories of interpretation when judging and lawmaking power are conflated in the early English state); Thorne, Equity of a Statute, supra note 127, at 203-04 (same). 131. See S.B. Chrimes, English Constitutional Ideas in the Fifteenth Century 290 (1936); Plucknett, Statutes, supra note 128, at 124-26 (collecting cases); Thorne, Equity of a Statute, supra note 127, at 204. 132. See Thorne, Equity of a Statute, supra note 127, at 204. 133. See, e.g., Eyston v. Studd, 75 Eng. Rep. 688, 696 (K.B. 1574) (Plowden's note) (collecting cases); Loyd, supra note 87, at 79-81 (discussing use of equity to mitigate rigors of generally worded statutes). 134. See Sir Peter Benson Maxwell, On the Interpretation of Statutes 231-32 (London, William Maxwell & Sons 1875) (discussing cases interpreting the statute of frauds). 135. See de Sloovre, supra note 124, at 592-593 & n.14; Landis, Sources of Law, supra note 87, at 216, 235 n.6; Maxwell, supra note 134, at 226-27. 136. Platt v. Lock, 75 Eng. Rep. 57, 59 (K.B. 1550). As the court explained: [A]lthough the action should not be maintainable by the common law, and although the statute was not made in affirmance of the common law, but was a new ordinance, yet the bill shall be maintainable by equity of the statute of Rich. 2. notwithstanding the statute does not give the action by express words against any other than the warden of the Fleet, for although it is penal against the warden, yet it is beneficial to all others, and therefore shall be extended by equity, for every statute is penal to some body. But inasmuch as the taking it by equity shall be more beneficial than prejudicial to the greater number of men, this is the reason why it may be extended by equity by the rules of law. Id. at 59. 137. See Sir Edward Coke, The Second Part of the Institutes of the Laws of England 322 (5th ed. 1671). HeinOnline -- 101 Colum. L. Rev. 31 2001
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tated by sound policy were written by judges into loose statutory generalizations, and, on the other hand, situations were brought within the '' 38 reach of the statute that admittedly lay without its express terms." Whatever the precise scope of the authority originally conferred by the doctrine (a question that has provoked scholarly debate) , 139 a fairly extensive version of it was assimilated into England's legal culture well before American independence. 140 By the sixteenth century, the era of the doctrine's fullest elaboration, a broad conception of the doctrine had become hornbook law. In his Institutes of the Laws of England, for example, Coke immortalized the practice as: a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischiefe, or cause of the making of the same, shall be within the same remedie that the statute provideth: and the reason hereof is, that for the lawmakers4 1could not possibly set downe all cases in expresse
terms.
1
138. Landis, Sources of Law, supra note 87, at 215-16. Or in John Norton Pomeroy's words: [Equity] has been applied in the interpretation of statutes, when a legislative enactment is said to be interpreted equitably; or, as the expression often is, according to the equity of the statute. This takes place when the provisions of a statute, being perfectly clear, do not in terms embrace a case which, in the opinion of the judge, would have been embraced if the legislator had carried out his general design. The judge, supplying the defective work of the legislator, interprets the statute extensively, or according to its equity, and treats it as though it actually did include the particular case. The word was sometimes used in this sense . . . by the earlier English text-writers and judges .... 1 Pomeroy, Treatise, supra note 124, at 36. 139. In contrast with Landis's broad description of the equity of the statute, Samuel Thorne argues that, by the late fourteenth and early fifteenth centuries, "[t]he strict, literal meaning of a statute may be extended, but only slightly extended, through use of the doctrine of the statute's equity." Thorne, Equity of a Statute, supra note 127, at 210; see also Y.B. 14 Hen. 7, Hil. 7 (1499) (allowing a woman whose marriage has been dissolved by divorce to invoke a statutory right of action available "after the death of her husband"); Y.B. 15 Edw. 4, Hil. 8, at 20 (1476) (action against jailer who releases prisoner committed for "arrears of account" also liable for release of prisoner committed for "debt"); Y.B. 4 Hen. 4, Trin. 4 (1426) (allowing relief for disturbance of "title" when statute referred to "title and possession"); Y.B. 3 Hen. 6, Mich. 18 (1425) (allowing "administrators" to bring action of trespass de bonis asportatis, even though the statute referred only to "executors"). Some legal historians further emphasize that judges would not use equitable construction to extend a penal statute or a statute in derogation of the common law. See Chrimes, supra note 131, at 295; Thorne, Equity of a Statute, supra note 127, at 211. Even if one accepts all of these claims about the equity of the statute, however, it does not alter the fact that English judges relied on equitable powers in some cases to extend the reach of statutes. 140. For further discussion of this development, see William D. Popkin, Statutes in Court: The History and Theory of Statutory Interpretation 11-19 (1999) [hereinafter Popkin, Statutes in Court]. 141. Sir Edward Coke, The First Part of the Institutes of the Laws of England 21, at 24.b (Philadelphia, Robert H. Small 1853) (1628). HeinOnline -- 101 Colum. L. Rev. 32 2001
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And Plowden's famous note to Eyston v. Studd completed the picture by stressing the judge's power not only to extend, but also to restrict, statutory words in the name of equity: [I] t is not the words of the law, but the internal sense of it that makes the law, and our law (like all others) consists of two parts, viz. of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut, which has a shell and a kernel within, the letter of the law represents the shell, and the sense of it the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit by the law, if you rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in the shell, so the fruit and profit of the law consists in the sense more than in the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive. And equity, which in Latin is called equitas, enlarges or diminishes the letter ....
... So that a man ought not to rest upon the letter only... but he ought to rely upon the sense, which is temperated and guided by equity, and therein he reaps the fruit of the law .... And in order to form a rightjudgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done, if he had been 42 present.1 As the foregoing passages suggest, when English legal commentators at last set out to systematize the rules of statutory interpretation, treatise and digest alike routinely treated a broad version of the equity of the statute 14 3 as an appropriate method of statutory construction.
142. Eyston v. Studd, 75 Eng. Rep. 688, 692, 695, 699 (KB. 1574) (Plowden's note) (italics omitted). 143. Consider, for example, St. Germain's early-sixteenth-century treatise, which explained: It is not possylbe to make any generall rewle of the lawe/ but that it shall fayle in some case. And therfore makers of lawes take hede to suche thynges as may often come and not to euery particuler case/ for they coulde not though they wolde And therfore to folowe the wordes of the lawe/ were in some case both agaynst Iustyce & the common welth: wherfore in some cases it is good and even necessary to leue the wordis of the lawe/ & to folowe that reason and Justyce requyreth/ & to that intent equytie is ordeyned/ that is to say to tempre and myttygate the rygoure of the lawe. Christopher St. Germain, Doctor and Student 97 (T.F.T. Plucknett & J.L. Barton eds., 1974) (citation omitted); see also 4 Matthew Bacon, A New Abridgement of the Law 649 (3d ed. 1768) ("An equitable Construction is a Construction by which a Case not within HeinOnline -- 101 Colum. L. Rev. 33 2001
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Of course, the final sentence of the previously quoted passage of Plowden's note may be taken to suggest that equitable construction was just a means of determining the desires or intent of the legislature. And many judicial opinions and commentaries explicitly invoked "intent," sometimes in close proximity to their discussions of equity.1 4 4 This consideration has reasonably lead some (relatively) modem commentary to equate equity with intent,145 perhaps leaving room to argue that the faithful agent theory runs deep after all. Yet the constitutional history is not that simple; as Hans Baade has shown, it is most unlikely that equity was synonymous with intent in the modern sense of genuine or historically likely intent.146 An interpretation might be contrary to "the intent of the makers" if it produced an outcome "against all reason and equity."1 47 Or, casting the point in the affirmative, "the intent of the Legislature" was to be determined "according to the necessity of the matter, and according to that which is consonant to reason and good discretion. 1 48 Indeed, anticipating modern public choice theory, the first English treatise on statutory interpretation suggested that genuine legislative intent was unthe Letter of a Statute is holden to be within the Meaning thereof, because it is within the Mischief for which a Remedy is thereby provided."); 4 Sir John Comyns, A Digest of the Laws of England 379 (1785) ("So the Judges expound a Case within the Mischief and Cause of an Act, to be within the Statute, by Equity, tho' it be not within the Words."); A Discourse upon the Exposicion & Understandinge of Statutes 140-41 (Samuel E. Thorne ed., 1942) [hereinafter Discourse] ("[S]ommetymes statutes are taken by equytye more than the wordes, sommetyme contrary to the wordes, sommetyme it is taken strayctelye accordinge to the wordes, and sommetyme, where there are no wordes in the statute and yet a case happenethe upon an estatute, the commen lawe shall make a construccion."); Sir Christopher Hatton, A Treatise Concerning Statutes or Acts of Parliament: and the Exposition Thereof 31 (London, Richard Tonson 1677): All Statutes may be expounded by Equity so far forth as Epicaia goeth, ... and Law of Reason from the general words of the Law of Man; for such cases are taken for understood, and what is understood is not out of the Law. By the Law of Reason, I mean .. .the Law Eternal, .... known to every man by the light of natural Reason .... According to Professor Plucknett's research, the Discourse was the first English treatise on statutory interpretation, written soon after 1557 by Thomas Egerton, the future Chancellor and Lord Ellesmere. T.F.T. Plucknett, Ellesmere on Statutes, 60 L.Q. Rev. 242, 242 (1944). Although Hatton's treatise was first published in 1677, it apparently was written around 1570. Baade, Casus Omissus, supra note 124, at 67. 144. See Baade, Casus Omissus, supra note 124, at 77. One need only think of the most famous precedent of the era, Heydon's Case, in which the Barons of the Exchequer instructed that the office of all the Judges is always to make such . . . construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. 76 Eng. Rep. 637, 638 (K.B. 1584). 145. E.g., Chrimes, supra note 131, at 292-93; de Sloovbre, supra note 124, at 594. 146. Baade, Cassus Omissus, supra note 124, at 77-81. 147. Fulmerston v. Steward, 75 Eng. Rep. 160, 171 (K.B. 1553). 148. Stradling v. Morgan, 75 Eng. Rep. 305, 315 (K.B. 1560). HeinOnline -- 101 Colum. L. Rev. 34 2001
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recoverable because the legislature consisted of "so manie heades ....so many wittes; so manie statute makers, so many myndes."1 49 Hence, far from relying exclusively on the type of "intent" invoked by modern judges, the judges in Plowden's day "sometimes ... [took] things by equity contrary to the text, in order to make them agree with reason and 50 equity."1 Of perhaps greatest interest, the equity of the statute found its place among the rules of construction set forth in Blackstone's Commentaries. Blackstone's Commentaries was the most widely read English law treatise in
late-eighteenth-century America, and his account of statutory interpreta1 51 tion provides potentially valuable insights into the Founders' attitudes. Blackstone, to be sure, used the faithful agent theory as his starting point,
noting that " [t] he fairest and most natural method to interpret the will of
the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable."'1 52 But that framework did not exhaust the judicial power in relation to statutes. Blackstone
went on to endorse the equity of the statute as "the correction of that,
wherein the law (by reason of its universality) is deficient."15 3 Because

149. Discourse, supra note 143, at 151. 150. Fulmerston, 75 Eng. Rep. at 171. Professor Baade also offers significant evidence suggesting that this attitude persisted into the Stuart era. Baade, Casus Omissus, supra note 124, at 76-77 (citing Sheffield v. Ratcliffe, 80 Eng. Rep. 475, 486 (K-B. 1616) (stating that the exposition of statutes was to be guided "by that liberty and authority that Judges have over laws, especially over statute laws, according to reason and best convenience, to mould them to the truest and best use"), and citing Earl of Oxford's Case, 21 Eng. Rep. 485, 488 (Ch. 1615) (explaining that "the Judges themselves do play the Chancellors Parts upon Statutes, making Construction of them according to Equity, varying from the Rules and Grounds of Law, and enlarging them pro bono publico, against the Letter and Intent of the Makers, whereof our Books have many Hundreds of Cases")). 151. Eskridge, Unknown Ideal, supra note 33, at 1523. The Supreme Court often relies on Blackstone on the assumption that the Founders would have consulted his Commentaries to determine the content of English law in the late eighteenth century. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 712 (1997) (arguing that Blackstone's Commentaries"not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers"); C.J. Hendry Co. v. Moore, 318 U.S. 133, 151 (1943) (Stone, C.J.) (noting that Blackstone's Commentaries were "more read in America before the Revolution than any other law book"); United States v. Wood, 299 U.S. 123, 138 (1936) (Hughes, C.J.) ("Undoubtedly, as we have frequently said, the framers of the Constitution were familiar with Blackstone's Commentaries. Many copies of the work had been sold here and it was generally regarded as the most satisfactory exposition of the common law of England."); Schick v. United States, 195 U.S. 65, 69 (1904) ("[At] the adoption of the Federal Constitution [Blackstone's Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it."); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1854) ("The debates in the federal convention upon the constitution show that the terms 'ex post facto laws' were understood in a restricted sense, relating to criminal cases only, and that the description of Blackstone of such laws was referred to for their meaning."). 152. 1 Blackstone, supra note 9, at *59. 153. Id. at *61 (quoting Grotius, De Aequitate 3). HeinOnline -- 101 Colum. L. Rev. 35 2001
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"all cases cannot be foreseen or expressed" in general laws, he explained, "there should be somewhere a power vested of excepting those circumstances which (had they been foreseen) the legislator himself would have excepted." 154 Blackstone did not, however, equate this power with the search for actual or likely intent. Rather, he made clear that the equity of the statute depends "upon the particular circumstances of each individual case," and that "there can be no established rules and fixed precepts of equity laid down, without destroying it's [sic] very essence, and reducing it to a positive law."'15 5 While this approach could not "be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge," such concerns did not preclude judges from interpreting statutes "by the reason and spirit" of them. 156 If that understanding, in turn, describes the Founders' reasonable expectations about the law declaration function, then the modern debate between strong purposivists and textualists about implementing the faithful agent theory may be largely beside the point. B. The English Institutional Setting for the Equity of the Statute As discussed, to determine whether an English constitutional practice appropriately translates into American circumstances, it is essential to understand the structural conditions that gave rise to and sustained that practice in England. A hypothetical illustrates the point: If the United States had broken free of a system in which statutes were issued by royal decree and subject to authoritative interpretation in every case by the Crown, one might question whether the doctrines of interpretation used in that system are transferable to a constitutional democracy marked by a separation of powers. Although this is not the system from which the United States broke free in the late eighteenth century, the traditional structural setting of the equity of the statute nonetheless casts doubt on its relevance to American interpretive doctrine. The equity of the statute doctrine arose and flourished in a country that, until quite late, had a relatively ill-defined sense of separated powers. First, the legislative and judicial functions were blurred. The upper house of Parliament served as the court of last resort, and English judges directly participated (to greater or lesser degrees over time) in the framing of statutes. Until fairly late, a comparatively undeveloped sense existed concerning the difference between the tasks of legislators andjudges. Second, again until relatively late (viz. until the Glorious Revolution), the line between lawmaking and judging was blurred for another reason. The Crown had
154. Id.; see also id. at *91: [W] here some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore that they are at liberty to expound the statute by equity, and only quoad hac disregard it. 155. Id. at *61-*62. 156. Id.
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pretensions to independent legislative authority, and English judges continued to serve as the Crown's agents, in theory and practice a component of the executive. Given these conditions, which distinguish the old English from the American constitutional context, 157 it is not surprising to find a similarly indistinct line between appropriate legislative and judicial functions in matters of interpretation. It is, I believe, telling in that regard that the doctrine of the equity of the statute ultimately receded from view once the Glorious Revolution established parliamentary supremacy and judicial independence. Indeed, by the time Blackstone wrote, his description of the equity of the statute was well on its way to becoming a constitutional anachronism, even in England. 1. Medieval Antecedents. - A.F. Pollard once wrote that "we cannot understand English constitutional history, with its struggles between crown, parliament, and courts of law, unless we realize that they all are descended from a single ancestor and are disputing over their respective 58 shares in an inheritance which all had once enjoyed in common."' That is to say, much of the story centers around the gradual and incomplete specialization of a government that, in Norman times, centered around the King's Court or Curia Regis, an assembly of magnates that the Crown summoned periodically to give advice, render legal judgments, and provide financial support.' 59 From this body evolved a smaller, more permanent Council of close attendants, administrative officials, and members of the royal household to perform the work of the full Curia whenever the full assembly disbanded. 160 In the twelfth and thirteenth
157. See infra Part III.A. 158. A.F. Pollard, The Evolution of Parliament 25 (2d ed. 1926). 159. See F.W. Maitland, The Constitutional History of England 61-63 (1908) [hereinafter Maitland, Constitutional History]; Theodore F.T. Plucknett, A Concise History of the Common Law 141 (5th ed. 1956) [hereinafter Plucknett, Concise History]. Before examining the medieval English constitution, it is necessary to recall the admonition once offered by McIlwain: In a picture of the institutions of medieval times we must be satisfied with hazy outlines. If in such a picture we demand all the sharpness of figure and detail that we might reasonably expect when modern institutions are described, we deceive ourselves; for such details can be supplied at this late day only by giving words a sense definite it may be, but one that they never had in the minds of the men that used them. Charles Howard McIlwain, The High Court of Parliament and Its Supremacy 26 (1910). This reality perhaps helps to explain fairly sharp historical disagreements about the details, timing, and characterization of many of the important developments. And the historian's eye surely will detect missing subtleties in any (necessarily) brief account of the complex, gradual, and uneven process of medieval constitutional change. Yet even a rough sketch of this era suffices to show that fourteenth-century statutory interpretation (if it can be called that) occurred within an incipient constitutional structure that did not clearly distinguish among those functions now associated with a tripartite theory of government. 160. See, e.g., George Burton Adams, The Origin of the English Constitution 66 (1912) ("In the reign of Henry I. there comes into sight a small curia, bridging the intervals of the larger and acting with all its powers, trying cases, supervising the sheriffs' accounts and receiving and caring for the king's revenues."); M.M. Knappen,
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centuries, the common law courts of Common Pleas and the King's 1 Bench took form as offshoots of the King's Council or Curia. 6 1 And
Constitutional and Legal History of England 145-47 (Archon Books 1964) (1942) (noting
the development of a small Council with the same legal powers as the larger Curia). Because of the informal and often changing character of English government, medieval English lawyers used "the Council" to refer to bodies of fluctuating size and composition, including at times the assembled ranks of the King's professional officers and the magnates. Holdsworth thus observes: What is the nature of the King's Council? This is a difficult question. Probably the working body of the Council consisted of the king's great officers of state and the judges. It is not easy to say how many more persons may have been added to the Council on any particular occasion. In later history we meet with many bodies called by the name of Council to which the epithets "magnum" or "ordinarium" are added; but in the Middle Ages these are merely epithets. 1 W.S. Holdsworth, A History of English Law 353 (3d ed. 1922) (footnotes omitted); see also Knappen, supra, at 144-46 (noting that the Council referred to both the smaller administrative body and the great assemblies); F.W. Maitland, Introduction to Memoranda de Parliamento, 1305, in Selected Historical Essays of F.W. Maitland 52-63 (Helen M. Cam ed., 1957) (discussing ill-defined character of Edward I's Council); McIlwain, supra note 159, at 17 ("[S]ome times more men seem to have attended the Council than others. At such times it may be called the Magnum Concilium. That the Magnum Concilium, however, was a distinct body, separate in function, in organization, in rights, no contemporary description of it gives us the right to say."). For some time, the term may have been used as a synonym for the Curia Regis. See Knappen, supra, at 146; Mcllwain, supra note 159, at 16-17 ("It is utterly impossible in this period, with the data that we have, safely to draw any definite line between Parliamentum, Curia, concilium ordinarium, concilium privatum, magnum concilium, commune concilium."); Plucknett, Concise History, supra note 159, at 151: In the thirteenth century this central group of officials and advisers who remained constantly in the King's presence was described by a variety of names; a chronicler will usually call it the "Council"; a law-writer such as Bracton, who is mainly interested in its judicial duties, will call it the King's Court or Cuia Regis. 161. See Knappen, supra note 160, at 166-69; Maitland, Constitutional History, supra note 159, at 68-69; Plucknett, Concise History, supra note 159, at 147-54. Holdsworth traces this development to the thirteenth and fourteenth centuries, 1 Holdsworth, supra note 160, at 209-10, and see also id. at 194-98, 206-11 (discussing medieval emergence of common law courts), although many historians place the emergence of these distinct courts at an earlier point, e.g., McIlwain, supra note 159, at 19 ("The twelfth century had seen the beginning of the courts of the King's Bench and Common Pleas, or at least one of them."). Although the precise scope of its jurisdiction is subject to some dispute, the Court of Common Pleas appears to have handled the routine civil matters. See Plucknett, Concise History, supra note 159, at 148-50; see also Knappen, supra note 160, at 167 (noting that "the ordinary pleas heard in this separate court usually concerned what we call civil cases"); Maitland, Constitutional History, supra note 159, at 69 (explaining that the court's jurisdiction involved suits between subjects). The King's Bench determined not only claims of error from the Court of Common Pleas, but also original cases of particular interest to the Crown. Knappen, supra note 160, at 168-69; Plucknett, Concise History, supra note 159, at 150. The theory of the King's Bench was that its cases would be held in the presence of the King, and, in the early days of that court, the King sometimes presided over its proceedings. See, e.g., I Rudolph Gneist, The History of the English Constitution 284 (Philip A. Ashworth trans., New York, G.P. Putnam's Sons 1886) ("The king, when it pleases him, appears himself as an itinerant judge, and presides in person in banco; instances of this kind, until Edward II., have been collected by Palgrave; and not unfrequently a judgment is postponed on account of the King's absence."); Maitland, Constitutional History, supra note 159, at 134 ("The King's Bench is theoretically a court HeinOnline -- 101 Colum. L. Rev. 38 2001
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39
what we now think of as Parliament, and the House of Lords in particular, "ultimately sprang from the same stock" as the small Council and the 1 62 common law courts.
held before the king himself, and for a long time yet, its justices journey about with the king."); Plucknett, Concise History, supra note 159, at 150 (noting that pleas before the King's Bench were presumptively to be heard by the King, but that circumstances often prevented that from occurring). Even after its differentiation into a regular common law court, held without the King's actual presence, cases before the King's Bench remained in theory cases before the King. See 1 Holdsworth, supra note 160, at 207; Maitland, Constitutional History, supra note 159, at 134. Previously, medieval Kings had dispensed justice through the Curia Regis. See, e.g., 1 Gneist, supra, at 261 ("[U]nder the name 'curia regis' there existed a wide judicial authority, residing in the King, of personally appointing and constituting the court in numerous important cases .... ); Maitland, Constitutional History, supra note 159, at 63 (noting that "a body of administrators selected from the ranks of the baronage and of the clergy" comprised the King's "council and court ... and its members [were] justitiaii, justiciars or justices"). 162. H.G. Richardson & G.O. Sayles, Parliaments and Great Councils in Medieval England 12-13 (1961) [hereinafter Richardson & Sayles, Great Councils] ("[B]oth parliament and [the] great council spring ultimately from the same stock, the king's council afforced by prelates and barons and, if need be, by such other learned men as the king chooses to summon."). At first, the term "parliament" seems to have referred to particularly large meetings of the Council. See 1 Holdsworth, supra note 160, at 352 (observing that the early Parliament "is, in fact, a large meeting of the King's Council afforced by elected representatives from the countries and boroughs"); Mcllwain, supra note 159, at 19 ("[C]ertain meetings of the Council-'parliaments of the council,' Maitland calls them-were more largely attended than ordinary meetings, though this in no way altered the legal status of the Council ....); Plucknett, Concise History, supra note 159, at 151 (stating that occasional, enlarged meetings of the King's Court or Council .were often referred to as 'parliaments"'); Richardson & Sayles, Great Councils, supra, at 13 (arguing that parliaments began as special sessions of the king's court). The precise date of its emergence as a distinct institution is difficult, if not impossible, to state. As Richardson and Sayles note, "since parliament was not the creation of a legislative act nor, so far as we can tell, a conscious creation at all, we cannot give a date to its inception." Id. at 8. Still, many historians trace the modern, representative Parliament to 1295, when Edward I summoned to his court not only the great magnates and clergy (precursors of the House of Lords), but also representatives of the shires and boroughs (precursors of the House of Commons). E.g., Courtenay Ilbert, Parliament 5-6 (Cecil Carr rev. 3d ed. 1948) [hereinafter Ilbert, Parliament] (describing the Parliament of 1295 as a "model Parliament" that established "the general type for future centuries"); Knappen, supra note 160, at 149 (noting that Edward I adopted the policy of summoning both rural and urban parties to sessions of the Great Council); 2 William Stubbs, The Constitutional History of England 291 (London, MacMillan 1875) (describing Edward I's perfection of a design for a national parliament). The reign of Edward I also marks the first keeping of separate Parliament Rolls. See Plucknett, Concise History, supra note 159, at 152. Some argue that it makes little sense to mark the origin of a distinct Parliament from the attendance of the commons in 1295. Richardson and Sayles, for example, observe that by the mid-thirteenth century, "a line of cleavage" between Parliament and the Council had become apparent, and that many of that era started to "distinguish parliaments from other sessions of the king's court." Richardson & Sayles, Great Councils, supra, at 13. They further contend that because the essence of early Parliaments involved the dispensation of justice by the King or by the King's representatives, it is anachronistic to mark its origins by the attendance of any particular class. Id. at 6-7. Despite the summons of the commons in 1295, they emphasize that "under Edward I and Edward II there was no convention
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Before discussing the way these institutions related to one another over time, it is useful to consider the way in which their institutional relations influenced interpretive technique in the period of their initial differentiation-that is to say, in the period before the mid-fourteenth century. To the extent that medieval thinkers even treated legislation and adjudication as distinct categories, 163 they apparently did not regard them as matters calling for distinct institutional competence. As these institutions gradually took on their own shape, a great deal of overlap remained in the functions each inherited from the common source of the CuriaRegis. The Council sat with and sometimes directed the work of the common lawjudges; 164 yet it also framed legislation. 165 Common law
whereby the representatives of either shires or boroughs were necessarily summoned to parliament." Id. at 7. Such summons, they say, became more frequent during the reign of Edward II, but did not crystallize into a regular practice until the reign of Edward III (1327-1377). Id. at 16. Although these questions remain subject to debate, identifying the precise origin of Parliament is less important than determining the scope of its authority in the era often associated with the rise of equitable interpretation. 163. See infra note 187. 164. See, e.g., James Fosdick Baldwin, The King's Council in England During the Middle Ages 65 (1913) ("There was the duty of giving counsel, not in the political sense only, but in advising and directing the actions of all the lower courts."); 1 Holdsworth, supra note 160, at 210 (noting that the Council intervened "in difficult cases by way of advice and direction" to the King's Bench); Plucknett, Statutes, supra note 128, at 23-24 (describing the stages of a single case and noting the involvement of the Council). So close was the connection that until nearly the end of the fourteenth century, "[p]arties were habitually summoned to appear, not simply 'coram rege' but 'coram rege et consilio;' and errors were redressed not only by the justices of the King's Bench but also by the Council." I Holdsworth, supra note 160, at 209 (citations omitted). Cases that came before the full Council most commonly involved matters of particular difficulty. See McIlwain, supra note 159, at 23-24 ("[I]n practice the whole Council would probably be actually called in only in extraordinary cases,-in cases of difficulty where the judges felt the need of having their opinion strengthened by their fellow councillors ....). Although Parliament managed to assimilate much of the Council's judicial power during the fourteenth century, the Council for many years retained a reservoir ofjudicial discretion to grant extraordinary relief in the name of the King. See J.H. Baker, An Introduction to English Legal History 38 (1971) ("[B]y the fourteenth century . . . petitions [for extraordinary relief] were considered by the Council, or by the great officers of the Council, on the king's behalf. The Council ... was the true successor of the nebulous Curia Regis, and in its judicial capacity it retained its nebulous character."); Plucknett, Concise History, supra note 159, at 152 (noting that the Council's "mission during a great part of the middle ages was to act as an extraordinary court of unlimited jurisdiction"). 165. To the extent that early legislation was parliamentary, see infra notes 190-191 and accompanying text, statutes generally arose out of petitions from the Commons to the King. See Baade, Casus Omissus, supra note 124, at 69; de Sloovi~re, supra note 124, at 592; Ilbert, Parliament, supra note 162, at 13; Maitland, Constitutional History, supra note 159, at 186, 189; Plucknett, Concise History, supra note 159, at 323. In the fourteenth century, either individual members of the Commons or the Commons as a whole would petition for relief; if the King in consultation with the magnates granted the petition, the Council would draft the legislation, typically after Parliament had dissolved. See Ilbert, Parliament, supra note 162, at 13 ("It was for the king, with the aid of those more intimately in his counsels, to determine whether legislation was required and if so what form it should assume .... The statute was not drawn up until after the parliament was HeinOnline -- 101 Colum. L. Rev. 40 2001
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judges not only adjudicated cases, but also drafted.or, as the fourteenth century wore on, at least assisted in drafting statutes. 166 An emergent Parliament exercised what we would think of as legislative powers, but also functioned as the highest common law court in England and was known as the High Court of Parliament.1 67 Hence, a common law judge might hear a case involving a statute that he or other judges had drafted or at least helped to draft; in the course of the proceedings, he might get advice or direction from the Council, which the King had consulted in issuing the statute; and a writ of error might lie with the Council or, as the fourteenth century proceeded, with Parliament itself.168 Whatever
); Maitland, Constitutional History, dissolved; its form was settled by the king's council. supra note 159, at 189 ("[T]he king, with the lords' assent, grants the petition of the commons .... The statute is not drawn up until after the parliament is dissolved; its form is settled in the king's council.. . ."); McIlwain, supra note 159, at 36 ("[F]or a considerable time the houses of Parliament were content to lay down the bare principles they wished to embody in the statutes, and the drafting of the acts was entirely in the hands of the Council."); Plucknett, Concise History, supra note 159, at 323 ("When the Parliament is over, the Council will consider these requests at its leisure, and if it thinks legislation is necessary it will prepare it according to its discretion and publish it as a statute with parliamentary authority."). 166. See Baade, Casus Omissus, supra note 124, at 71 (statutes in the fourteenth century were "literally 'made,' i.e., drafted in toto, by a committee of judges who were ex officio members of the King's Council"); Plucknett, Concise History, supra note 159, at 322 (noting that "[e]ven after parliamentary legislation had begun to appear.., the Council exercised a preponderant influence" and that "among the councillors were frequently to be found the judges, for it is only natural in so practical an age that the Council should call upon the judges to draft legislation"); Frederick Pollock, A First Book ofJurisprudence 330 (London, MacMillan 1896) ("[Tlhe wording of the statutes was not finally settled by Parliament itself, but entrusted to a smaller body of the king's learned counsellors and judges."); H.G. Richardson & George Sayles, The Early Statutes (Concluded), 50 Legal Q. Rev. 540, 545 (1934) [hereinafter Richardson & Sayles, Early Statutes] ("The task of drafting fell, normally at all events, upon the ministerial members of the council and especially the judges, and the final draft was passed to the chancery with instructions to issue it." (footnote omitted)); cf. Courtenay Ilbert, Legislative Methods and Forms 5 (1901) [hereinafter Ilbert, Legislative Methods] ("The king listened to the petitions which were presented to him in Parliament... and then, having considered the matter, with the help of his sages in the law, either did nothing or, through their agency, devised an appropriate remedy which might or might not correspond to the petition."). Although the judges gradually assumed more of an advisory role in the Council, they continued to play an important role in the formulation of legislation well after the fourteenth century. See Pollard, supra note 158, at 34. 167. See 1 Holdsworth, supra note 160, at 351-56 (detailing the history of Parliament and its judicial powers); see also Richardson & Sayles, Great Councils, supra note 162, at 30-31 (noting that "the surviving records of the parliaments of the first two Edwards... are . . . overwhelmingly the result of the dispensation of justice," and that similar assumptions "apply with equal force to the early years of Edward III"). 168. To convey a sense of the institutional fluidity of fourteenth-century litigation, Plucknett offers the following procedural history of a case decided during the reign of Edward III: It began . . . in the Common Pleas where after lengthy proceedings a difficult question of law occasioned (as was alleged) a mistake in the record. The demandant therefore petitioned the king in council in parliament and put the HeinOnline -- 101 Colum. L. Rev. 41 2001
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historical disagreements or uncertainties might surround the precise arrangement of these early institutions, one surely cannot ascribe any meaningful theory of separated powers to medieval English political thought. 169 Thus, one would hardly expect the medieval English judge to have a sense of usurping the responsibilities of a different branch, with
question before them, which they decided, and ordered the Common Pleas to proceed thereupon; after a further delay the Common Pleas considered the question whether it was good law for parliament to have decided the case in the absence of one of the parties, but on consulting with the Chief Justice of the King's Bench failed to reach a decision upon the point, and more delay followed. The demandant again petitioned the council, and then the prelates, earls, barons and others in full parliament sent the Clerk of Parliament to go in person to the Common Pleas and tell the Judges to give judgment before the bench rose, or else to take the rolls into parliament. The latter course was followed, and the Chancellor, Treasurer, Judges, Barons of the Exchequer and the King's Council in parliament assembled, read the record and agreed that the demandant should recover. Judgment was then given in the Common Pleas. A writ of error now removed the whole case into the King's Bench which was as slow as the court below. The plaintiffs in error now in their turn petitioned to the council, who ordered the judges of both Benches to consult. Delays continued; more petitions by both parties were addressed to the council recalling that the matter had already been heard "in two parliaments and in full parliaments." After further proceedings before the king in Chancery the plaintiffs in error were non-suited and the original demandant had execution. Plucknett, Statutes, supra note 128, at 23-24 (footnotes omitted) (discussing the case of Staunton v. Staunton and wife, Y.B. 14 & 15 Edw. 3, Hil. 18, at 288-300 (1340-1341) (Luke Owen Pike ed. & trans., 1889), and discussing Luke Owen Pike, Introduction to Year Books of the Reign of Edward the Third: Years XIII and XIV, at xxxvi-xliv (Luke Owen Pike ed. & trans., 1886)). 169. See, e.g., Carleton Kemp Allen, Law in the Making 245 (1927) ("[I]n the government of medieval England there is no conscious doctrine of separation of powers.... Even in the fourteenth century, when the constitutional form of Parliament has become settled in essentials, there is no invariable line of demarcation between the legislative, judicial, and administrative functions."); McIlwain, supra note 159, at 259 ("Parliament to [the judges] was not foreign, not external, not exclusively legislative or nearly so; it was another body more like themselves than unlike, more honourable, and of greater dignity, but still a court."). As Plucknett explains: Our period is remarkable for this fusion of powers, which frustrates all attempts to make the mediaeval constitution look like a system. These facts must be borne in mind when we come to... the relations between the courts and the legislature (whether council, or parliament, or council in parliament), for they will explain the absence of that feeling that a statute is something imposed upon a court from without, which is so typical of modern conditions. Plucknett, Statutes, supra note 128, at 25; see also Pollock, supra note 166, at 330 (noting that during this period, "[I] aw-making is not yet regarded as a distinct branch of sovereign power, external to the judicial authority, requiring strict and literal obedience, but entitled to nothing more."); Percy H. Winfield, The Chief Sources of English Legal History 72 (1925) (arguing that in medieval England, "[wie are not even safe in saying that executive, legislative, and judicial functions were telescoped, for that assumes that men of that age had a theory of some sort about the division of powers, whereas they seem to have had none whatever").
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distinct competence and legitimacy, when interpreting a clear statute 170 contrary to its terms. Although these institutions and functions gradually became more differentiated over time, the unwritten English constitution continued to be marked by significant commingling of governmental powers until relatively late in English history. Accordingly, the conditions for some time remained hospitable for equitable interpretation. Although a full account of these developments is a matter for another day, it is relevant and important to consider the two contexts that most strongly establish that point-the conflation of legislative and judicial powers and of executive and judicial powers. 2. The Commingling of Legislative and JudicialFunctions. - In contrast with the U.S. Constitution,1 71 English legislative and judicial functions significantly overlapped for many years. This overlap, moreover, ran in both directions. First, judges played a continuing role in the drafting of legislation. As discussed, in the medieval period that role flowed naturally from the extreme conflation of powers. The Commons petitioned the Crown for legislation; if the King assented, he would ask the Council to frame the bill, often after the dissolution of Parliament. 172 Because judges were (at least in some form) members of the Council,1 73 it was
170. See, e.g., Maxwell, supra note 134, at 230 (noting that the division between the "legislative and judicial functions was feebly drawn, and the importance of the separation imperfectly understood. The ancient practice of having the statutes drawn by the judges from the petitions of the Commons and the answers of the King may also account for the wide latitude of their interpretation." (footnotes omitted)); de Sloovre, supra note 124, at 591-92 (arguing that early equitable interpretation was "due [in part] to the fact that the provinces of legislator and judge were not clearly distinguished, and in part to the ancient practice of having the statutes drawn by the judges from petitions of the Commons and the answers of the King." (footnotes and internal quotations omitted)); Felix Frankfurter, Foreword: A Symposium on Statutory Construction, 3 Vand. L. Rev. 365, 366 (1950) (noting that the problem of interpretation was different when 'judges were lawmakers and lawmakers were judges, before adjudication was separated from legislation"); Loyd, supra note 87, at 85 (arguing that atextual interpretation was "thoroughly in accord" with the philosophy of the age). In a similar vein, Samuel Thorne maintains that we should not even consider the early English cases to be examples of "interpretation": The interpretation of statutes in its modern sense is a late-comer to English law: it must be obvious that so long as the law maker is his own interpreter the problem of a technique of interpretation does not arise. Only when he is forced to delegate the function of interpretation to a different person does the matter become urgent. Thorne, Equity of a Statute, supra note 127, at 203. The effect of commingling judicial and legislative functions is readily apparent in Chief Justice Hengham's famous admonition to counsel in 1305: "Do not gloss the Statute; we understand it better then [sic] you do, for we made it .... Aumeye v. Anon, Y.B. 35 Edw. 1 at 78, 82 (1305) (Alfred J. Horwood trans., 1879). 171. See infra Part III.A. 172. See supra note 165. 173. See 1 Holdsworth, supra note 160, at 483. The precise position ofjudges in the Council "has been a question of some difficulty." Baldwin, supra note 164, at 75. As early as the reign of Edward I, the judges apparently ceased to have the same status in the HeinOnline -- 101 Colum. L. Rev. 43 2001
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natural for them to take the lead in drafting. 174 Even after the Commons secured the right in 1414 to pass completed bills (thereby relieving judges of their direct authority to frame finished legislation) ,175 royal and parliamentary consultation ofjudges on legislation endured as a common practice, lasting well into the eighteenth century. 176 In the House of Lords, for example, judges "assisted committees for bills, drafted amendments, [and] explicated points of law and defended them in conferences 1 with the House of Commons." 7 7 Indeed, they were sometimes called upon to help prepare the Crown's legislative program for Parliament. 178 It should therefore come as little surprise that as late as the eighteenth century, Madison could still state with accuracy that English judges "are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative 1 79 vote." Second, legislative and judicial functions merged in familiar ways on the parliamentary side as well. Beginning in the fourteenth century, the judicial authority of the magnates in Parliament (who ultimately formed the House of Lords) increased in relation to that of the royal officers and judges at the core of the King's permanent Council. 180 The magnates
Council as the prelates and barons. Id. at 76. During the reign of Edward III, they ceased to be sworn members of the Council, although they were still summoned to attend its proceedings. Id. By the reign of Richard II in the late fourteenth century, the judges were only occasionally summoned to the Council as advisers, but they continued to play an important role, as such, in the disposition of legal questions. Id. at 76-77; see also Mcllwain, supra note 159, at 35 (noting that even after they became advisers, judges continued to enjoy a significant role in the deliberations of the Council and then of Parliament). 174. See supra note 166. 175. See Baade, Casus Omissus, supra note 124, at 70-71; Ilbert, Parliament, supra note 162, at 13-14; Maitland, Constitutional History, supra note 159, at 189; Plucknett, Statutes, supra note 128, at 323. There is some evidence that even after 1414, the Crown continued to assert broad powers to suspend or alter legislation. See Plucknett, Concise History, supra note 159, at 323; Richardson & Sayles, Great Councils, supra note 162, at 549-62 (collecting examples). For a detailed examination of the evolution from petitions into bills during the fourteenth and fifteenth century, see 2 Stubbs, supra note 162, at 602-05. 176. See Stewart Jay, Servants of Monarchs and Lords: The Advisory Role of Early English Judges, 38 Am. J. Legal Hist. 117, 126-27 (1994) [hereinafter Jay, Servants of Monarchs]. 177. Elizabeth Read Foster, The House of Lords, 1603-1649, at 82 (1983). 178. See Jay, Servants of Monarchs, supra note 176, at 134; see also David Lindsay Keir, The Constitutional History of Modern Britain Since 1485, at 29 (6th ed. 1961) (noting that judges "advised as to the drafting . . . of legislation, answered questions addressed to them by the executive, and on assize acted as political as well as judicial representatives of the central authority"). 179. The Federalist No. 47, supra note 9, at 302 (James Madison). 180. See, e.g., Baldwin, supra note 164, at 318 (noting a shift in the meaning of "the council in parliment": "As the prelates and lords therefore absorbed all the independent functions of the justices and their associates, [the expression] inevitably shifted from its original meaning ....[I]t meant nothing less than the house of lords, wherein a few of the HeinOnline -- 101 Colum. L. Rev. 44 2001
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assumed a growing responsibility for answering petitions,' 8 ' particularly those based upon claims of law. 182 Most importantly, fourteenth-century Parliaments secured appellate jurisdiction over the common law
courts, a8 3 a jurisdiction that ultimately came to reside in the House of
Lords.' 8 4 Although that jurisdiction is now segregated for performance by a separate class of law lords, that development did not occur until
law officers of the crown remained in a subordinate capacity."); 1 Holdsworth, supra note 160, at 356-57 (observing that in the early fourteenth century, "the phrase 'king in his council in Parliament[ ]' came to mean, not ajoint session of the Council and Parliament, but simply a session of the House of Lords, to which the judges and certain other officials of the crown were summoned merely as assistants"); Richardson & Sayles, Great Councils, supra note 162, at 45 ("Bishops, earls, and barons had hitherto been present in the council with judges and ministers; but henceforward the status, as well as the number, of the king's servants in the council was to decline while the status of the peers was to be exalted."). 181. Petitions to the King in Parliament took various forms. Based on a study of hundreds of petitions lodged with several Parliaments during the early fourteenth century, Richardson and Sayles, for example, concluded: Apart from five "petitions of a general character by the estates of the realm"words we should hesitate to adopt-the petitions fall into three groups: (a) petitions for legal relief in cases in which the king is concerned; (b) petitions for favours to be granted by the king; (c) petitions relating to private wrongs.... Out of these hundreds of petitions the great majority are concerned with judicial or quasi-judicial matters. Richardson & Sayles, Great Councils, supra note 162, at 37. 182. See Baldwin, supra note 164, at 325-26; 1 Holdsworth, supra note 160, at 358-59. 183. See Baldwin, supra note 164, at 335-37; 1 Holdsworth, supra note 160, at 361. The common law courts evidently assisted in this process by resisting the appellate jurisdiction of the Council. See id. Even after the magnates acquired appellate jurisdiction over the common law courts, "the Council might advise the judges, or even give directions as to the hearing of a case." Id. The Council also continued to assert occasional authority to answer petitions independently of Parliament. See Baldwin, supra note 164, at 327-28. 184. See Maitland, Constitutional History, supra note 159, at 136, 214-15. This jurisdiction apparently became firmly established during the fourteenth century, with an unexplained lapse in the next century. See I Holdsworth, supra note 160, at 360-62; Maitland, Constitutional History, supra note 159, at 215, 245. In 1585, an Act of Parliament expressly recognized the jurisdiction of the House of Lords to hear cases of error. Id. at 244. The House of Lords's exercise of such jurisdiction was theoretically consistent with the concept that the King was the fountain ofjustice. Although the Crown did not actually participate in the disposition of writs of error to the House of Lords, the appellate jurisdiction of that body technically was exercised by the King-in-Parliament. See I Holdsworth, supra note 160, at 364 ("[A]n appeal to a body styled 'the King in his Council in Parliament' could only be to the House of Lords."); Maitland, Constitutional History, supra note 159, at 136 ("[T]he House of Lords, the assembly of prelates and barons, becomes the ultimate court of error-still in name and theory the jurisdiction is that of the king in parliament."); see also Prohibitions Del Roy, 77 Eng. Rep. 1342, 1342-43 (K.B. 1611) (noting that although the King may no longer dispense justice personally, errors of the King's Bench were technically reviewed by "the Upper House of Parliament, by the King, with the assent of the Lords Spiritual and Temporal"). In the late seventeenth century, the House of Lords secured similar authority over writs of error to the courts of chancery. See Baker, supra note 164, at 63; Maitland, Constitutional History, supra note 159, at 316-17. HeinOnline -- 101 Colum. L. Rev. 45 2001
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1873.185 In practice, this meant that the ultimate authority to interpret statutes resided in a body that shared responsibility for their 86 enactment. Although the judicial opinions applying the equity of the statute disclose relatively little about the justification for that interpretive practice, the relative fluidity of governmental functions fits tightly with an interpretive method that minimizes the distinction between legislative and judicial functions. If legislators and judges were collaborators in both enterprises, it is fairly easy to see why judges might also conceive of themselves as partners in making statute law more coherent and just. This impression may have been reinforced, moreover, by a lingering sense that statutes were useful principally as a means to declare or improve the effectiveness of customary law, rather than as a form of positive lawmaking in 8 the modern sense.1 7 And this supposition finds at least collateral support in the fact thatjudges asserted authority to extend statutes by equity
185. See Baker, supra note 164, at 64; Maitland, Constitutional History, supra note 159, at 350-51. 186. Indeed, besides relying on common law judges for legislative drafting, the House of Lords often summoned them to assist in the performance of its legal duties. See Jay, Servants of Monarchs, supra note 176, at 124-26. As Blackstone reported in 1765: In the next place they [members of the House of Lords] have a right to be attended, and constantly are, by the judges of the court of king's bench and commonpleas, and such of the barons of the exchequer as are of the degree of the coif, or have been made serjeants at law; as likewise by the masters of the court of chancery; for their advice in point of law, and for the greater dignity of their proceedings. I Blackstone, supra note 9, at *162. 187. See, e.g., Samuel E. Thorne, Introduction to Discourse, supra note 143, at 9-10 n.9 ("[N]or were statutes regarded as quite different from the judgments, records, and fines customary [in Parliament]."). As Mcllwain explains: The idea of "making" law is alien to then existing modes of thought, and when changes occur, as they must, if consciously made, they are usually only corrections of defects in the machinery for administering the ancient customs, or they purport to be the restoration of these customs after a period of wrongful desuetude, or the abolishing of abuses that have contravened the ancient rules; or finally, if the changes cannot be brought conveniently under any of these, they are concealed under a fiction. Mcllwain, supra note 159, at 46-47; see also Popkin, Statutes in Court, supra note 140, at 10 ("Despite the fact that Parliament was obviously making law, the idea persisted, long after the reality was otherwise, that it was only declaring what customary common law had been."); M.J.C. Vile, Constitutionalism and the Separation of Powers 28 (2d ed. 1998) (noting that English government fundamentally was conceived as "an instrument for distributing justice" and that legislative and judicial powers were seen as "subdivisions of the basic judicial function of government"); G. Barraclough, Law and Legislation in Medieval England, 56 L.Q. Rev. 75, 76 (1940) (arguing that the medieval English mind did not contemplate lawmaking as such, but focused on the customs of the people as the source of law). For criticism of this conception, see, for example, Allen, supra note 169, at 245 ("This theory goes too far and is not generally accepted."); 2 Holdsworth, supra note 160, at 442 n.1 (disagreeing with Mcllwain); Morris S. Arnold, Statutes as Judgments: The Natural Law Theory of Parliamentary Activity in Medieval England, 126 U. Pa. L. Rev. 329, 331-34 (1977) (giving examples of medieval lawmaking). The difficult question of HeinOnline -- 101 Colum. L. Rev. 46 2001
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only when doing so would not abridge the common law. 188 Because the U.S. Constitution self-consciously draws a sharp distinction between the legislative and judicial powers and the officials who exercise such powers, 189 the interpretive practices produced by this distinctive English structure may cast very little illumination with respect to the appropriate interpretive theory for "the judicial Power of the United States." 3. The Crown and ItsJudges. - Two other, related features of the English constitutional structure cast further doubt on whether English interpretive practice is an appropriate model for understanding federal judicial power. First, until the Glorious Revolution firmly established Parliament's legislative supremacy, the Crown continued to assert some inherent lawmaking authority independent of Parliament. Second, until the same point, judges were in theory and practice agents of the Crown, exercising part of the monarch's executive power. Viewed in the context of the long struggle between the Crown and Parliament for constitutional supremacy, the equity of the statute may stem, in part, from what came to be an anachronistic royal claim to intrinsic legislative power. When the English state began to take form in the middle ages, the Crown could legitimately claim to be the ultimate source of legislative power. Indeed, any account of the early Parliaments' legislative power is complicated not only by persistent royal assertions of independent legislative power,'" but also by related questions of what counted as a statute. 91 And, as discussed, to the extent that early Commons secured an
whether and when English political philosophy recognized that statutes could make, rather than declare, the law is beyond the scope of this Article. 188. See Chrimes, supra note 131, at 295; Thorne, Equity of a Statute, supra note 127, at 211-12. 189. See infra Part III.A. 190. See, e.g., Plucknett, Statutes, supra note 128, at 321 ("In the reign of Edward I we find some extremely important legislation which seems to have emanated from the King in Council alone, or at most from a Council in Parliament, for we find no mention of the Commons."); Richardson & Sayles, Early Statutes, supra note 166, at 560 ("In the early years of Edward III there appears to have been no insistence upon the exclusive competence of parliament to make statutes."); G.O. Sayles, The King's Parliament of England 115 (1974) ("Under Edward I legislation had been imposed from above: prepared and propounded by the king's ministers and judges, it was submitted to the council, sometimes in and sometimes out of parliament."). 191. Along these lines, historians have debated whether by Edward III's time, royal ordinances, adopted by the King in Council, differed in function and effect from statutes enacted with the assent of the Commons. Compare McIlwain, supra note 159, at 313 (arguing that statutes were more permanent than ordinances and merely affirmed existing law), with Plucknett, Statutes, supra note 128, at 33 (arguing that in the early fourteenth century, "there [was] no contrast expressed or distinction visible between statutes and ordinances"), and Richardson & Sayles, Early Statutes, supra note 166, at 560 ("The distinction then between an ordinance and a statute was a refinement which was ineffective because it was without practical result."). As Holdsworth has observed, "at the end of the thirteenth and at the beginning of the fourteenth century it would hardly have been possible to give a very precise answer to a question as to the whereabouts of the legislative power in the state." 2 Holdsworth, supra note 160, at 437. HeinOnline -- 101 Colum. L. Rev. 47 2001
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essential role in the enactment of statutes, they did so by petitioning the Crown for legislation. 192 Indeed, even after Parliament secured the authority to pass bills for the Crown to approve or disapprove in toto, the theory (if not necessarily the reality) of legislation centered around the 193 idea of the Crown-in-Parliament. Even after Parliament's authority over statutes became more firmly established, 194 the Crown continued to claim residual lawmaking authority of sorts-an assertion of power that persisted through, and contrib195 uted to, the great constitutional struggles of the seventeenth century. The Tudor and Stuart monarchs made frequent use of this royal prerogative to issue proclamations having the binding effect of law.1 9 6 Similar to the justification for the equity of the statute, the rationale for this power related to contingencies that Parliament could not foresee and fully address by statute. 197 As Locke thus explained: [S] ince in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.1 98 By the same token, until approximately the end of the seventeenth century, the Crown also claimed the prerogative of dispensation-that is,
192. See supra note 165. 193. See Max Radin, The Doctrine of the Separation of Powers in Seventeenth Century Controversies, 86 U. Pa. L. Rev. 842, 844 (1938) [hereinafter Radin, Separation of Powers] (noting that at common law, "[l]egislation was carried on by the king in his Parliament-or as it was often expressed, with his 'Estates'"). 194. See supra note 175 and accompanying text. 195. See W.B. Gwyn, The Meaning of the Separation of Powers 28-36 (1965) [hereinafter Gwyn, Meaning]. 196. The Crown continued to exercise this authority extensively until the outbreak of the Civil War in 1641. See 4 Holdsworth, supra note 160, at 100-04, 296-305. With the exception of a brief period (1539-1547), in which Parliament explicitly authorized Henry VIII to issue certain proclamations, the Tudor and Stuart Kings relied on inherent authority to issue such proclamations. See id. at 102-04, 296-97; Keir, supra note 178, at 116-17, 144. Hence, at least in this period, it is difficult to justify the practice as a form of legislative delegation from Parliament to the Crown. 197. See, e.g., Gwyn, Meaning, supra note 195, at 30 (quoting William Camden's observation that the Crown possessed "the power of making proclamations, which are law so far as they take not away other written laws or customs; the right use of them is to turn away a mischief which is not provided for by a law"); 4 Holdsworth, supra note 160, at 101-02 ("[T]he growth of the modern state necessitated, in the interests of good government, a constant and minute regulation by the central authority of the activities both of the individual and of the various parts of the body politic; and this clearly necessitated an extensive use of royal proclamations."). 198. John Locke, Second Treatise of Government 160, at 84 (C.B. Macpherson ed., Hackett Pub. Co. 1980) (1690).
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the power to dispense with duly enacted laws of Parliament where equity so required. 199 Although the power gradually eroded, the Crown's dispensing power received judicial reaffirmation as late as 1682.200 The resulting opinion relied on justifications closely analogous to those underlying the equity of the statute: [F] or human laws there is a kind of necessity that they should be changed and varied according to the circumstances of men or times; for no law can be so contrived but either it may be too large, and take in persons who ought not to be taken in, or it may be too narrow, and leave out persons that ought to be taken in, and therefore it is necessary, that they should be subject to alteration by the same power that made them .... 201 When one considers the relationship between the Crown and the judiciary, the similarity between the equity of the statute and these assertions of royal legislative power seems to reflect more than mere coincidence. English political theory, until relatively late, regarded judges as executive officials, 20 2 to some extent beholden to the Crown. The medieval King was "the fountain of justice," 20 3 and, as discussed, the King's Council exercised authority over the common law courts well into the fourteenth century. 20 4 Englishjudges, moreover, served at the pleasure of the Crown until the Glorious Revolution (1688) and the Act of Settlement (1701) assured them tenure and salary protection during good behavior. 205 Monarchs occasionally reinforced their authority over judges, moreover, by requesting advisory opinions, which would then be used to
199. See Gwyn, Meaning, supra note 195, at 29 (noting that in Elizabethan England, the monarch's prerogatives were said to include "dispensing with the laws if equity required it"); id. at 30 ("The only exception [to the idea that the King was bound by the laws of Parliament]-and one no longer recognized by the end of the seventeenth century-was the royal power to dispense with the law to prevent violations of the higher law of equity."). Holdsworth describes the origins of the dispensing power as follows: That in the Middle Ages a suspending and dispensing power was vested in the king is unquestionable. Such a power is, as Maine pointed out, an early and a universal attribute of kingship. The king was always supposed to possess a reserve of power which enabled him to correct the deficiencies of the ordinary law; and the King of England was no exception .... 6 Holdsworth, supra note 160, at 218 (citations omitted). 200. See Godden v. Hales, 89 Eng. Rep. 370, 370 (KB. 1682). 201. Id. 202. E.g., Gwyn, Meaning, supra note 195, at 5 ("What we now call executive and judicial functions were known then usually as simply 'executive power.'"); Vile, supra note 187, at 31 ("[T]he idea of a separate executive function is a relatively modern notion, not being fully developed until the end of the eighteenth century."). 203. 1 Gneist, supra note 161, at 183. 204. See supra note 164 and accompanying text. 205. See, e.g., 6 Holdsworth, supra note 160, at 234 ("The Act of Settlement provided that 'Judges' commissions be made quamdiu se bene gesserint, and their salaries ascertained and established; but upon the address of both Houses of Parliament it may be lawful to remove them.'" (quoting Act of Settlement, 1701, 12 & 13 William 3, ch. 2, 3 (Eng.))). Although the Crown could remove judges upon the address of both Houses of Parliament, the Act of Settlement nonetheless gave judges practical assurance of independence. As
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pressure judges to resolve cases in the Crown's interests. 20 6 The Stuart Kings, in fact, made it their practice to dismiss common law judges for
deciding cases contrary to the Crown's interests.
2 7 0
If constitutional the-
ory and (at times) governmental practice treated judges as agents of the Crown, it is hardly surprising thatjudges exercised an equitable authority bearing a close resemblance to the legislative powers claimed by the Crown2 8-powers that were to become obsolete after the political struggles of the seventeenth century forged the modern English state. Of course, aspects of the complex historical record cast doubt on this explanation for the equity of the statute. As Holdsworth suggests, by the late fourteenth century, the common law judges in fact felt a growing allegiance to Parliament.20 9 They were generally antagonistic to royal inBarbara Black has explained: The problem of judicial independence at that time was the problem of impartial decision between the royal and the popular interest; the threat to judicial independence might therefore be expected to come either from the royal or from the popular interest; the requirement that both concur in a removal would, then, have seemed an adequate safeguard of judicial independence. Barbara Aronstein Black, Massachusetts and the Judges: Judicial Independence in Perspective, 3 Law & Hist. Rev. 101, 106 (1985) [hereinafter Black, Judicial Independence]. Since William III's judges were commissioned "quamdiu se bene gesserint" (during good behavior), judges received a strong measure of independence after the Glorious Revolution. See Maitland, Constitutional History, supra note 159, at 312-13. Statutory assurance of life tenure and salary protection during good behavior, however, had to await the Act of Settlement. See id. at 313. 206. Professor Jay has argued that the Stuart Kings sometimes used that device "to pressure the judges into unanimous views and assure the outcome of [a] case by ex parte consultations in advance." Jay, Servants of Monarchs, supra note 176, at 137; see also id. at 134-42 (describing royal power to request advisory opinions). 207. See, e.g., 2 Gneist, supra note 161, at 239 ("UnderJames I., political motives, for the first time, dictate the dismissal of a Lord Chief Justice (Sir Edward Coke), and a shameless system of the sale of judicial offices appears, which shakes the honourable character the bench had gained under the Tudors."); id. at 298 ("During [Charles II's] reign three lord chancellors, three chief justices, and six judges were dismissed, notoriously for political reasons .... The maxim of Government, which Bacon had applied to Henry VII., had returned, viz. 'he governed his subjects by the laws, but the laws by the lawyers."'); 6 Holdsworth, supra note 160, at 213 ("[I]n the latter part of Charles II.'s reign, when political passions were beginning to grow fiercer, judges were appointed and carried this policy to even dismissed purely for political reasons; and . . . James II .... greater extremes than his brother."); Jay, Servants of Monarchs, supra note 178, at 145 ("The practice of suspending, dismissing, or forcibly retiring judges was used throughout the Stuart period .... "); 2 David Ogg, England in the Reign of Charles II, at 522 (1956) ("[W]here the interests or the supposed interests of the Court were concerned, the judges, almost without exception, were tools [of the Crown]."). 208. See Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 393 (1908) [hereinafter Pound, Common Law] ("The courts were the king's courts, administering his justice in his name by his writs. So long as his prerogative existed, they were bound to give effect to it quite as much as they were to give effect to legislation."). 209. Consider, for example, the following: [I] t was not doubtful to which of these two organs of government they would be attracted. Parliament they recognized as the body whose consent was necessary to the making of the laws which they applied; while the Council sometimes did or HeinOnline -- 101 Colum. L. Rev. 50 2001
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terference, and viewed the common lawyers in the Commons as natural allies in the courts' (ultimately successful) bid to free themselves of this outside supervision. 210 Indeed, some of the most prominent proponents of equitable interpretation were judges who strongly resisted royal control of the courts. 2 11 Still, this does not negate the fact that the Crown and the judiciary remained, in formal and practical terms, closely linked until the end of the seventeenth century, or that the extra-statutory powattempted to do things which in their opinion went beyond both the statute and the common law .... It is not surprising, therefore, that the common lawyers came to think that errors in the King's Bench ought to be corrected in Parliament, and not by the Council. 1 Holdsworth, supra note 160, at 210-11 (footnotes omitted). 210. See id. at 211 ("Common lawyers were an important element in the House of Commons; and the judges of the King's Bench and the Common Pleas were common lawyers similarly educated, similarly employed, often changing from one bench to the other"). Holdsworth thus argues that the judges of the common law courts denied the authority of the King's Council to review their judgments by the late fourteenth century. The turning point was apparently in 1366, when the judges of the Common Pleas ignored the Council's attempt to reverse one of itsjudgments. Id. at 361. "After this decision," says Holdsworth, "the jurisdiction to amend the errors of the common law courts was left to Parliament." Id. In addition, although judges served at the Crown's pleasure, in practice judicial tenure was not always as insecure as in the Stuart Era. See, e.g., 2 Gneist, supra note 161, at 191 (arguing that during the Tudor era, "the constitution of the courts and the personal position of the justices appears, in spite of their revocable appointment and their position ofjusticiaries of the council, to be a dignified one, and maintains during the whole period a high reputation and character for impartiality."). 211. Coke, for example, was a leading proponent of the equity of the statute. See supra text accompanying note 141. Yet he also fiercely asserted judicial independence from the Crown. In 1611, for example, Coke advised James I that "the King in his own person cannot adjudge any case, either criminal, as treason, felony, &c. or betwixt party and party, concerning his inheritance, chattels, or goods, &c. but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England...." Prohibitions Del Roy, 77 Eng. Rep. 1342, 1342 (K.B. 1611); see also 1 John Lord Campbell, The Lives of the Chief Justices of England from the Norman Conquest till the Death of Lord Mansfield 271-73 (London, John Murray, Albemarle Street 1849) (describing Coke's resistance to the King's attempt to decide cases); Maitland, Constitutional History, supra note 159, at 268-69 (relating Coke's account of his confrontation with the King). And in 1616, while serving as Chief Justice of the King's Bench, Coke disregarded the King's request to stay proceedings in an important case involving the royal prerogative over certain ecclesiastical matters; instead, Coke and the other judges of the King's Bench decided the case against the royal prerogative, and informed the King that they were bound to decide according to the law expressed in two statutes of the realm. See 1 Campbell, supra, at 283-85. When the King then summoned Coke and the other judges to Whitehall, Coke continued to maintain that it was his duty to decide cases without delay and according to law. See id. at 284-86. Later the same year, Coke refused to appoint the King's candidate to the lucrative position of chief clerk of the King's Bench. See id. at 286-87. On November 16, 1616, the King finally removed Coke from the Chief Justiceship of the King's Bench, ostensibly on the grounds that Coke had used his opposition to the government to gain favor with the people and that his reports of cases contained errors. See id. at 291-92. As Lord Campell wrote, "when all the other Judges basely succumbed to the mandate of a Sovereign who wished to introduce despotism under the forms of juridical procedure, [Coke] did his duty at the sacrifice of his office." Id. at 239. Thus, it cannot lightly be maintained that Coke viewed the equity of
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ers exercised by both appeared to be cut from the same cloth. In short, as Max Radin once wrote: Separation of powers had no place in the common law. All power was in the king, conceived as a person or as a corporation. Legislation was carried on by the king in his Parliamentor as it was often expressed, with his "Estates"; administration by the king in his personal Council or Councils; judicature by the king in his courts, in all of which he was present and for every act of which only his writ gave validity. Again, the king had certain particular governmental rights by virtue of his prerogative and these rights might be exercised by him in his own person. Parliament-at any rate, the nucleus of Parliament, the House of Peers-was both the Supreme Court and the Common Council of the kingdom, while the judges of the other courts were of the king's counsel, and present at each Parliament if not mem212 bers of it. 4. Equity in the Eighteenth Century and Beyond. - If the conflation of governmental powers in England provides the context necessary for understanding the equity of the statute, one might expect that the doctrine would recede with the establishment of parliamentary supremacy and a more pronounced separation of powers after the Glorious Revolution. It becomes necessary to explain, therefore, why Blackstone's Commentaries continued to reflect the premises of that doctrine two-thirds of the way through the eighteenth century. 213 At the most general level, one might observe that embedded legal traditions frequently outlive the conditions
the statute as a doctrine of royal supremacy. This does not necessarily mean that, while still a judge, Coke behaved as a parliamentary supremacist. Rather, Dr. Bonham's Case, 77 Eng. Rep. 638, 652 (KB. 1609), suggests that he believed that the judiciary had authority to void an act of Parliament. And Radin suggests that Coke became an advocate of parliamentary authority only after he had been dismissed from the judiciary and become a member of Parliament. Radin, Separation of Powers, supra note 193, at 851. Indeed, says Radin: Coke, in spite of his later Parliamentarism, advanced his statement of the doctrine [ofjudicial review] on behalf of a contention favored by the Crown; and both in his Reports and his Institutes is anything but a lover of Acts of Parliament, which he repeatedly treats as unwarranted interference with the... common law. Id. at 861. 212. Radin, Separation of Powers, supra note 193, at 844; see also John Norton Pomeroy, An Introduction to the Constitutional Law of the United States 167, at 108 (1868) [hereinafter Pomeroy, Constitutional Law]: Nothing has been productive of more confusion than the habit of arguing from the English to the American Constitution .... The highest judicial officer-the Chancellor-is a member of the Cabinet, and presides over the House of Lords; while other judges may be members of the same body. The Chamber of Peers is the supreme tribunal of appeal.., while a committee of the Privy Council has a very extensive appellate jurisdiction over other classes of courts. 213. See supra text accompanying notes 151-156.
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that produced them. 2 14 Common law judges and lawyers may have continued to subscribe to the equity of the statute as a doctrine of immemorial usage that had become second nature to them. 2 15 If so, the full implications of the recent structural changes may not have been assimilated all at once. The Glorious Revolution, moreover, did not entirely eliminate the structural conditions that seem to have sustained the equity of the statute. As discussed, although English judges secured independence from the Crown in 1701, the legislative and judicial powers remained somewhat commingled by virtue of the judicial functions of the House of 216 Lords and the continued participation of judges in legislative affairs. Even so, the equity of the statute did begin to recede, albeit gradually, as English political thought "attached to the growing fact of the separation of powers an important doctrinal validity." 217 The shift away from equitable interpretation had become perceptible during the eighteenth century. 218 By the nineteenth century, the trend was unmistak214. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897) ("It is revolting to have no better reason for a rule of law than that... it was laid down in the time of Henry IV."). 215. As David Lieberman has explained, eighteenth-century common lawyers, including Blackstone, laid great (though not exclusive) emphasis upon ancient custom as an indicium of legitimacy for English law. David Lieberman, The Province of Legislation Determined 40-49 (1989). 216. See supra Part II.B.2; Daniel Duman, The Judicial Bench in England 1727-1875, at 1 (1982); Popkin, Statutes in Court, supra note 140, at 13-19. In addition, more idiosyncratic factors may also have slowed the movement away from the equity of the statute. For example, some eighteenth-century judges and theorists may have favored retaining relatively broad judicial power over statutes because of the widely held perception that Parliament was enacting legislation that was hasty, excessive, and of poor quality. See Lieberman, supra note 215, at 16-20, 71-72; Gordon S. Wood, The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less, 56 Wash. & Lee L. Rev. 787, 799-800 (1999). Lord Mansfield's controversial and important tenure as ChiefJustice of the King's Bench may also have contributed to the persistence of equitable interpretation. Mansfield is best remembered for his belief in strong judicial authority to reshape and modernize the common law. See, e.g., 7 Holdsworth, supra note 160, at 45 (noting that Mansfield sought "to rationalize and liberalize" the common law "by an infusion of rational and equitable principles"); Lieberman, supra note 215, at 88 (discussing Mansfield's "legal creativity and innovation"). Mansfield, however, sometimes also carried this attitude into the realm of statutes by construing them narrowly to avoid injustice. See James Oldham, From Blackstone to Bentham: Common Law Versus Legislation in Eighteenth-Century Britain, 89 Mich. L. Rev. 1637, 1648, 1653 (1991) (reviewing Lieberman, supra note 215). At the same time, there is some evidence that even Mansfield regarded himself as bound by Parliament's will when a statute was clear. See Lieberman, supra note 215, at 71-72; Oldham, supra, at 1655-56 (collecting examples). 217. Landis, Sources of Law, supra note 87, at 217. 218. See Popkin, Statutes in Court, supra note 140, at 19; see also Jones v. Smart, 99 Eng. Rep. 963, 967 (K.B. 1785) (Buller,J.) ("[W]e are bound to take the Act of Parliament, as they have made it: a casus omissus can in no case be supplied by a Court of Law, for that would be to make laws ...."); Colehan v. Cooke, 125 Eng. Rep. 1231, 1233 (C.P. 1742) (Willes, L.C.J.) (noting that an intent inquiry is proper "[w]hen the words of an Act are doubtful and uncertain," but that "it is very dangerous for Judges to launch out too far in
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able.21 9 Perhaps because the equity of the statute reflected centuries of English legal practice, English judges felt a particular obligation to account for their new attitude. Without regard to the accuracy or inaccuracy of their explanations, it is interesting to note how directly their analyses built upon the related premises of parliamentary supremacy and limited judicial power. Some suggested that the equity of the statute was 220 the relic of an age in which "no great precision of language prevailed," and that judges should treat more precise and detailed modem statutes as complete expressions of legislative policy. 221 To do otherwise, Lord Brougham observed, would be to cross into the realm of the legislature: [N]othing can be more dangerous than to make such [equitable] considerations the ground of construing an enactment that is quite complete and unambiguous in itself. If we depart from the plain and obvious meaning on account of such views, we in
searching into the intent of the Legislature, when they have expressed themselves in plain and clear words"). Even if Professor Popkin is correct in suggesting that the change in judicial attitude was mainly rhetorical during this period, Popkin, Statutes in Courts, supra note 140, at 19, shifts in rhetoric orjustification may supply important insights into shifts in constitutional understanding. 219. See Sedgwick, supra note 124, at 307, 311; see also Moss v. Comm'rs of Sewers, 119 Eng. Rep. 247, 251 (Q.B. 1855) (Campbell, CJ.) ("[H]ardship can only be urged before us when we are construing doubtful language to assist us in getting at the real intention of the Legislature. Here we think that the language imposing the liability is not doubtful .... "); Rhodes v. Smethurst, 150 Eng. Rep. 1335, 1343 (Ex. 1838) (Abinger, C.B.) (declining to recognize novel implied exception to statute of limitations and emphasizing that "whichever way we decide a question not provided for by the legislature, the imagination may suggest cases of considerable hardship; but a Court ... ought not to be influenced or governed by any notions of hardship; they may require legislative interference, but we cannot modify the rules of law"); Brandling v. Barrington, 108 Eng. Rep. 523, 527 (KB. 1827) (Tenterden, C.J.) ("I think there is always danger in giving effect to... the equity of a statute, and that it is much safer and better to rely on and abide by the plain words, although the Legislature might possibly have provided for other cases had their attention been directed to them."); Wilson v. Knubley, 103 Eng. Rep. 49, 52-53 (KB. 1806) (Le Blanc, J.): If then we were to bring this case, which, is clearly not within the words, within the equity of the statute, we should be giving it a construction against what appears to have been within the contemplation of the Legislature, and certainly against the express letter of the Act: though I agree that it would have been better to have extended the remedy to the general mischief recited. 220. Wilson, 103 Eng. Rep. at 52 (Lord Ellenborough, CJ.). 221. Id.; see also Attorney Gen. v. Sillem, 159 Eng. Rep. 178, 237 (Ex. 1863) (Channell, B.) (noting that judges often invaded "what we now consider the sole province of the legislature .... That I think will never be done again. As long as acts of parliament are drawn as they are now, the office of construing them will be no sinecure, though we have but to interpret the law and not to make it."); Patrick v. Stubbs, 152 Eng. Rep. 351, 354 (Ex. 1842) (Lord Abinger, C.B.) (noting that, in statute-making, the current course is "to employ all the rhetoric of conveyancers and special pleaders, and to provide for every case that suggests itself to the imagination of the person who draws the act. Formerly it was otherwise, and courts of law were left to interpret the meaning of the legislature."); Maxwell, supra note 134, at 230 ("It has been explained, also, on the ground that language was used with no great precision in early times, and that Acts were framed in harmony with the lax method of interpretation contemporaneously prevalent.").
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truth do not construe the act, but alter it: we add words to it, or vary the words in which its provisions are couched: we supply a defect which the legislature could easily have supplied; and are really making the law, not interpreting it. This becomes peculiarly improper in dealing with a modern statute, because the extreme conciseness of the ancient statutes was the only ground for the sort of legislative interpretation frequently put upon their words; and the prolixity of modem statutes is still more remarkable than the shortness of the old. The only safe rule is, to hold, that, if the legislature had intended to obviate the consequences apprehended, it would have done so .... 922 Emphasis was also laid on the fact that "[i]n ancient times the provinces of the Judge and of the legislator were not unfrequently confounded under colour of those principles." 2 23 In contrast, under modern principles of government, applying the equity of the statute presented too great 2 24 a risk of judicial subjectivity and usurpation. Of course equitable interpretation did not wholly vanish from English case law.225 Yet the "plain meaning" rule eventually supplanted the equity of the statute as hombook law in England. 2 26 And by the late nineteenth century, the primary question for English judges was whether to confine themselves to the literal meaning of a clear statute or to apply a narrow exception for "an absurdity so great as to make perfectly clear that the legislature did not intend it."22 7 This dramatic change in attitude,
222. Gwynne v. Burnell, 133 Eng. Rep. 175, 217 (H.L. 1840) (Lord Brougham). 223. Bradlaugh v. Clarke, 8 App. Cas. 354, 363 (H.L. 1883) (Earl of Selborne, L.C.); see also Maxwell, supra note 134, at 230 (noting that the equitable construction of "ancient" statutes "has also been accounted for by the fact that in those times the dividing line between the legislative and judicial functions was feebly drawn, and the importance of the separation imperfectly understood"). 224. See, e.g., Woodward v. Watts, 118 Eng. Rep. 836, 838 (Q.B. 1853) (Crompton, J.) ("I have great doubt as to what the Legislature may have intended; and I do not know that, if this case had been present to their minds, they would have thought this a fit qualification."). 225. See G.A. Endlich, A Commentary on the Interpretation of Statutes 324, at 444-46 (Jersey City, Frederick D. Linn & Co. 1888). 226. See William Feilden Craies, A Treatise on Statute Law 73 (2d ed. 1911) ("If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the lawgiver."); see also Leader v. Duffey, 13 App. Cas. 294, 301 (H.L. 1888) (Lord Halsbury, L.C.) (describing "modem view-which is I think in accordance with reason and common sense-that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained"); The Sussex Peerage Case, 8 Eng. Rep. 1034, 1057 (H.L. 1844) (Tindal, L.C.J.) ("precise and unambiguous" statutory terms "best declare the intention of the lawgiver"). 227. J.A. Corry, Administrative Law and the Interpretation of Statutes, 1 U. Toronto L.J. 286, 299 (1936); see also id. at 298-308 (discussing evolution of literal interpretation in England); E. Russell Hopkins, The Literal Canon and the Golden Rule, 15 Can. B. Rev. 689, 690-95 (1937) (noting decline of absurdity doctrine in England). Compare Vacher & Sons, Ltd. v. London Soc'y of Compositors, 1913 A.C. 107, 121 (H.L.) (Lord Atkinson) ("If the language of a statute be plain, admitting of only one meaning, the Legislature must be HeinOnline -- 101 Colum. L. Rev. 55 2001
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though gradual in coming, provides at least collateral support for the idea that the equity of the statute reflected the thinking of a different time and a different constitutional order.
III. "THE
JUDICIAL POWER" IN A SYSTEM OF SEPARATED
POWERS
To determine the applicability of the English doctrine of the equity of the statute to "the judicial Power of the United States," it is necessary to consider whether that doctrine fits with the structural assumptions underlying the U.S. Constitution. Because the structure of the U.S. Constitution departs in important respects from that of the English government, English judicial practice is sometimes, but not always, a relevant model for American judicial power. 228 And with respect to the particular question ofjudicial authority to interpret statutes, inferences from the constitutional structure are especially probative of the legitimacy of any given interpretive method. 229 The Constitution does not generally prescribe rules of construction. But because all statutory interpretation is "an intertaken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results."), and Cooke v. Charles A. Vogeler Co., 1901 A.C. 102, 107 (H.L.) (Earl of Halsbury, L.C.) ("[A] court of law has nothing to do with the reasonableness or unreasonableness of a provision, except so far as it may help them in interpreting what the Legislature has said."), with River Wear Comm'rs v. Adamson, 2 App. Cas. 743, 743 (H.L. 1877) (holding that an unqualified statute subjecting vessel owner to liability for damage to dock did not apply when damage resulted from act of nature). Professor Corry contends that even the judges who disclaimed the power to avoid absurdity, in fact, found ways to avoid absurd results. Corry, supra, at 302-08 (discussing cases). 228. To be sure, the practices prevailing at Westminster in 1789 frequently inform the meaning of Article III power. See, e.g., Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 587 (1985) (defining core Article III business);Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring) (stating that justiciability is determined in light of "the business of the Colonial courts and the courts of Westminster when the Constitution was framed"); Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., plurality opinion) (same). Still, in many important areas, the Supreme Court has found the English model of judicial power inappropriate to the American constitutional scheme. For example, Blackstone had explained that English judges lacked the power ofjudicial review. 1 Blackstone, supra note 9, at *91. But in an American government established by "a written constitution," the Supreme Court of course found such authority to be implicit in the judicial power to "say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (plurality opinion) (noting that legislative supremacy principle described by Blackstone is modified by the premise that "the power of American legislative bodies . . . is subject to the overriding dictates of the Constitution and the obligations that it authorizes"). In addition, even though English judges had long issued advisory opinions, the Court has also held that Article III courts cannot issue such opinions. Flast v. Cohen, 392 U.S. 83, 96 (1968). In a system of limited judicial power, "the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts." Id. 229. For a fuller discussion, see John F. Manning, Constitutional Structure and Statutory Formalism, 66 U. Chi. L. Rev. 685, 689-93 (1999). HeinOnline -- 101 Colum. L. Rev. 56 2001
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branch encounter of sorts,"2 30 selecting an appropriate interpretive methodology involves inevitable choices about the institutional allocation of power between courts and legislatures. 231 To the extent that our constitutional structure reflects considered judgments about that allocation of such power, it is essential to adopt rules of statutory interpretation that further, rather than detract from, the structural objectives established by 3 2 2 the constitutional design. Starting from these assumptions, this Part will argue that the U.S. Constitution rejected English structural assumptions in ways that make the equity of the statute an inappropriate foundation for the 'judicial Power of the United States." Specifically, the original understanding indicates that, in contrast with relevant English practice, the U.S. Constitution self-consciously separated the judicial from the legislative power and, in so doing, sought to differentiate sharply the functions performed by these two distinct branches. Viewed in historical context, moreover, this aspect of the separation of powers had long been associated with the objective of limiting official discretion and promoting the rule of law. It is difficult to conclude, therefore, that the Founders also sought to embrace the broad judicial lawmaking powers and discretion associated with the doctrine of the equity of the statute. In addition, the apparent structural objectives of bicameralism and presentment cut sharply against the equity of the statute. At the most general level, it is surely doubtful that one would adopt a highly elaborate system for enacting law ifjudges had broad independent authority to add to or subtract from the results of that process. More specifically, the process of bicameralism and presentment places a premium on the right of political minorities, particularly the residents of small states, to insist
230. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 593 (1995). 231. Id. at 593-94 (explaining that "statutory interpretation represents the legal moment when a court confronts the product of the legislative branch and must assign meaning to a contested provision" and that, in carrying out this task, "the court must adopt-at least implicitly-a theory about its own role by defining the goal and methodology of the interpretive enterprise and by taking an institutional stance in relation to the legislature"). As Jerry Mashaw once put it: Any theory of statutory interpretation is at base a theory about constitutional law. It must at the very least assume a set of legitimate institutional roles and legitimate institutional procedures that inform interpretation. Otherwise, rudimentary questions, such as whether a particular document presented for interpretation is a statute, or whether the presentation of that document in a particular context calls for an authoritative interpretation of it, cannot be answered. Beyond these very. basic questions lie many more that determine ultimately what it means to speak authoritatively in a legislative or in a legalinterpretive voice. Such questions can be answered only by reference to the fundamental normative and institutional attributes of the state. Jerry Mashaw, As If Republican Interpretation, 97 Yale L.J. 1685, 1686-87 (1988). 232. See John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612, 636-37 (1996) [hereinafter Manning, Structure and Deference]. HeinOnline -- 101 Colum. L. Rev. 57 2001
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upon legislative compromise. This feature cannot easily be squared with the exercise of broad judicial lawmaking authority outside the constitutionally ordained legislative process. Finally, this Part will consider early American attitudes about the equity of the statute. Emphasizing the ratification debates and the early judicial practice, proponents of the equity of the statute suggest that early Americans expected federal judges to interpret congressional enactments equitably. In fact, the evidence of early American attitudes is, at best, ambiguous on the question. If anything, it tends to suggest that the faithful agent theory, rather than the equity of the statute, was on firmer footing with early Americans. A. The Separation of Legislative andJudicial Powers and the Rule of Law The American constitutional relationship between legislative and judicial power differs markedly from the structural arrangements that produced and entrenched the equity of the statute in England. Whereas the legislative andjudicial branches remained closely intertwined throughout much of English history, the structure of the U.S. Constitution self-consciously draws sharp lines between those branches. Accordingly, one should not assume that "the judicial Power of the United States" automatically absorbed an English practice built on an inhospitable conception of legislative and judicial relations. Equally importantly, the full historical context suggests that the separation of the legislative and judicial powers in the United States was designed, in part, to limit governmental discretion and promote rule of law values. In so doing, the Founders expressed a marked preference for values such as predictability, transparency, and constraint, rather than the flexibility implicit in a more discretionary approach to statutory interpretation. Hence, assimilating the equity of the statute into the judicial power would contradict important objectives underlying the American separation of powers. In contrast to the common law tradition that produced the equity of the statute, the U.S. Constitution takes pains to ensure judicial independence from the control and functions of the political branches. First, Article III provides that federal judges "shall hold their Offices during good Behaviour, and shall, at stated Times, receive ... a Compensation, which shall not be diminished during their Continuance in Office." 233 Clearly, this provision ensures that federal judges would exercise the judicial power free of the influence of the political branches. As Hamilton put it, tenure in office protects the judiciary from the "continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches."23 4 Salary protection, moreover, guarantees "the complete sepU.S. Const. art. III, 1. 234. The Federalist No. 78, supra note 9, at 466 (Alexander Hamilton). previously argued that The Federalist does not provide an authoritative source Constitution's original meaning. John F. Manning, Textualism and the Role Federalist in Constitutional Adjudication, 66 Geo. Wash. L. Rev. 1337, 1350-54 HeinOnline -- 101 Colum. L. Rev. 58 2001
233.
I have of the of The (1998)
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aration of the judicial from the legislative power" by relieving the judiciary of dependence on the legislature's "pecuniary resources." 235 In contrast with the previously discussed English common law system, 236 the U.S. Constitution explicitly disconnects federal judges from the legislative power and, in so doing, undercuts any judicial claim to derivative lawmak23 7 ing authority.
[hereinafter Manning, Constitutional Adjudication]. In particular, one has no reason to assume that a constitutionally sufficient number of ratifiers had access to or agreed with the contents of those essays. Id. At the same time, however, constitutional analysts can properly invoke The Federalistas an informed, contemporaneous source of analysis when it supplies a persuasive explanation of the text, structure, or history of the Constitution. Id. at 1354-60. Thus, borrowing from another context, I have contended that modern interpreters should give The Federalist such weight as is warranted by "the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id. at 1360 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). To the extent that I invoke The Federalist to support structural inferences, I do so only to the extent that it persuasively describes the purposes immanent in the constitutional design. Cf. Radin, Statutory Interpretation, supra note 40, at 875 (noting that "the purpose of many entities may be ... something which is evident in the character of the thing itself'). 235. The Federalist No. 79, supra note 9, at 472 (Alexander Hamilton). 236. See supra Part II.B.1-3. 237. This distinction between legislative and judicial functions is further reflected in the Philadelphia Convention's deliberations over the Council of Revision, an ultimately unsuccessful proposal to give the judiciary a share in the veto power. See 1 The Records of the Federal Convention of 1787, at 21 (Max Farrand ed., rev. ed. 1966) [hereinafter Farrand]. Despite persistent efforts by powerful members of the Convention (including Madison and Wilson), the Convention repeatedly voted to reject any judicial role in legislation and to vest the veto power exclusively in the executive. See id. at 104, 140; 2 Farrand, supra, at 80, 298; see also Charles Warren, The Making of the Constitution 332-35, 338 (1929) (discussing rejection of Council of Revision). The arguments on both sides of the question reveal important shared assumptions about the judiciary's legislative functions-or the lack thereof. Proponents, for example, sought judicial participation in the Council of Revision, in part, because "[l]aws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not so unconstitutional as to justify the Judges in refusing to give them effect." 2 Farrand, supra, at 73 (comment ofJames Wilson); see also id. at 78 (comment of George Mason) ("They could declare an unconstitutional law void. But with regard to every other law however unjust oppressive or pernicious.... they would be under the necessity as Judges to give it a free course."). Lacking inherent authority to reshape the enacted law, judges could use their part in the veto power to counteract "the improper views of the Legislature." Id. at 73 (comment of James Wilson). Equally importantly, although opponents of this measure did not challenge the basic premise of limited judicial power, they remained hesitant to blend legislative and judicial functions even in the limited sense contemplated by the Council of Revision. For example, some argued that such a blending would turn "Expositors of the Laws [into] Legislators which ought never to be done." 2 Farrand, supra, at 75 (comment of Elbridge Gerry); see also id. (comment of Caleb Strong) ("[T]he power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established."). Others added that the formulation of policy was foreign to the office of the judge. See, e.g., 1 Farrand, supra, at 97-98 (comment of Elbridge Gerry) ("It was quite foreign from the nature of ye office to make them judges of the policy of public measures."); 2 Farrand, supra, at 73 (comment of Nathaniel Ghorum) ("As Judges they are not to be presumed to possess any peculiar HeinOnline -- 101 Colum. L. Rev. 59 2001
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Second, the American constitutional structure also departs from its common law ancestry by vesting ultimate judicial authority in an independent Supreme Court, rather than in the upper house of the legislature. 23 8 If the dual capacities of Parliament helped blur the distinction between the legislative and judicial functions in England, the careful separation of legislative and judicial powers in the United States suggests a corresponding lack of functional overlap. 2 39 One would hardly expect the legislative and judicial powers to be so carefully demarcated if their functions were, at bottom, functionally identical. In addition, if the legislature, or a part thereof, does not exercise the ultimate judicial power, the broad practice of equitable interpretation by ordinary judges would trigger more obvious concerns about unchecked encroachment on the legislature's 240 decisions.
knowledge of the mere policy of public measures."). And participating in legislation might cause judges to bring a legislator's bias to statutory interpretation. See, e.g., 1 Farrand, supra, at 98 (comment of Rufus King) (arguing that "the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation"); 2 Farrand, supra, at 79 (comment of Nathaniel Ghorum) ("[Tihe Judges ought to carry into the exposition of the laws no prepossessions with regard to them."); id. at 80 (comment of John Rutledge) ("The Judges ought never to give their opinion on a law till it comes before them."); id. at 298 ("Mr. Pinkney opposed the interference of the Judges in the Legislative business: it will... give a previous tincture to their opinions."). This debate lends support to the structural inference that the careful separation of the two branches was meant, in part, to ensure a differentiation in the legislative and judicial functions. I cite these materials not as authoritative evidence of the Founders' "intent." Because the records of the Philadelphia Convention remained unpublished until many years after the ratification of the Constitution, its secret deliberations could not have supplied a basis for the understanding of the ratifiers who ultimately gave the document life. See Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 725 (1988). Rather, these materials are relevant because they reflect a shared expectation that judicial and legislative functions were to be distinct. Cf. Sun Oil Co. v. Wortman, 486 U.S. 717, 723 (1988) (noting that debates offer evidence of background "expectation[s]" about constitutional meaning). Hence, the debates concerning the Council of Revision are relevant precisely because their premises fit tightly with inferences that reasonably emerge from the constitutional structure itself. 238. See U.S. Const. art. III, 1; see also The Federalist No. 81, supra note 9, at 483 (Alexander Hamilton) (noting that the Supreme Court is "composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and in that of this State"). 239. This aspect of the separation of powers, moreover, is reinforced by the Incompatibility Clause, which provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." U.S. Const. art. I, 6, cl. 2. Among other things, this clause prevents judges from serving as legislators and vice versa. To be sure, some have argued that the clause sought primarily to prevent the President from co-opting the legislature through patronage. See Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045, 1052-57 (1994). Even if that is correct, however, the clause nonetheless operates to ensure that the legislative and judicial powers will reside not only in distinct organs of government, but also in distinct personnel. 240. Indeed, Hamilton praised the departure from the House of Lords precisely HeinOnline -- 101 Colum. L. Rev. 60 2001
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Third, the Bill of Attainder Clause further distinguishes the functions of the two branches. 241 As the Court has explained, by prohibiting legislative punishment without judicial trial, 24 2 that clause implements "a general safeguard against legislative exercise of the judicial function, or more simply-trial by legislature." 243 Although this structural provision is surely less fundamental than those previously discussed, it nonetheless confirms the constitutional aim of a functional differentiation between Congress and the judiciary. Taken together, all of these structural features leave little doubt that the institutional context of "the judicial Power of the United States" differs materially from the context that framed the equity of the statute. The historical background of the American separation of powers strongly reinforces this conclusion. In particular, the sharp separation of legislative and judicial powers was designed, in large measure, to limit judicial discretion-and thus to promote governance according to known and established laws. This rule-of-law justification for the separation of powers owes a great deal to the Founders' negative experiences with the ineffectively separated powers of colonial and state governments. 244 The colonists lived under a system of royaljustice. Because the colonial goverbecause it would make spirit-based interpretations less likely. As he explained: From a body which had even a partial agency in passing bad laws we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them would be too apt to operate in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators would be disposed to repair the breach in the character of judges. The Federalist No. 81, supra note 9, at 483 (Alexander Hamilton). Although this passage suggests that federal judges would "temper and moderate" laws through interpretation, that expectation does not necessarily endorse interpretation contrary to the plain import of the laws. See infra text accompanying notes 317-325. The important point is that Hamilton apparently expected the separation of legislative from judicial powers to reduce the possibility of interpreting laws according to their "spirit." 241. U.S. Const. art. I, 9, cl. ("No Bill of Attainder or ex post facto Law shall be 3 passed."). 242. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866). 243. United States v. Brown, 381 U.S. 437, 442 (1965); see, e.g., INS v. Chadha, 462 U.S. 919, 961-62 (1983) (Powell, J., concurring in the judgment); Paul R. Verkuil, The Separation of Powers, the Rule of Law, and the Idea of Independence, 30 Wm. Mary L. & Rev. 301, 308-09 (1989). It was also widely assumed in the founding era that the "legislative powers" did not encompass authority to revise the judgments of the courts of law. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219-25 (1995) (discussing this history). 244. See, e.g., Edward S. Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 513 (1925) (noting that the Philadelphia Convention was influenced by .questions which were thrust upon its attention by the shortcomings of the state governments for their purposes"); Philip B. Kurland, The Rise and Fall of the 'Doctrine' of Separation of Powers, 85 Mich. L. Rev. 592, 594 (1986) ("The American concept of the separation of powers ... is the prime example of the proposition that experience rather than theory grounds the Constitution."). HeinOnline -- 101 Colum. L. Rev. 61 2001
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nor, the governor's council, and ultimately the English Privy Council exercised appellate jurisdiction over colonial judgments, executive and legislative officials exercised direct authority over the dispensation of colonial justice. 24 5 The American Revolution, however, did not at first bring a culture of judicial independence to the newly formed governments. Colonial assemblies had themselves exercised significant direct and indirect control over judges, 246 and the lines between judging and
245. As Gordon Wood explains: While the English Privy Council had long since lost its right to hear appeals from the English common law courts, it had remained for the colonists, often to their exasperation, a final court of appeal in important civil cases from the provincial governors and councils who themselves sat as courts of appeal in all civil cases of error within the colonies. In many colonies judges themselves were also members of the council so that they often heard appeals in cases in which they had originally participated. And in all the colonies (except Pennsylvania) the councils in addition to their executive and judicial responsibilities acted as upper houses of the legislatures. Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 159 (1969) [hereinafter Wood, Creation]; see also 1 Holdsworth, supra note 160, at 516-25 (noting that Privy Council continued to exercise appellate jurisdicion over colonial courts long after losing such jurisdiction in England). Since the Act of Settlement did not apply to the colonies, colonial judges also lacked formal protection against removal by the Crown, though the Crown did not make practical use of its removal authority. See, e.g., Wood, Creation, supra, at 160 ("While judges in England since the Glorious Revolution had been granted their commissions during good behavior, the judges in the colonies continued to hold their offices ambiguously at the pleasure of the Crown."); Black, Judicial Independence, supra note 205, at 108-09 (noting that although judges in the colonies could be removed from the bench at the will of the Crown, "America saw nothing remotely resembling the dismissals of judges and manipulation of benches that we find within the realm in the era of the Jameses and Charleses ... or under the Georges"). 246. See, e.g., Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 49-52 (1943) (describing various ways in which colonial assemblies intervened in judicial decisions); Oliver Morton Dickerson, American Colonial Government, 1696-1765, at 198-99 (1962) ("There is but little doubt that the power of the Assembly to fix salaries rendered all the judges practically dependent upon that body .... New York the salaries In were varied .. .and in one case apparently for the purpose of showing disapproval of a decision of the Supreme Court." (footnotes omitted)); Wood, Creation, supra note 245, at 154 ("[T]he assemblies in the eighteenth century still saw themselves . . .as a kind of medieval court making private judgments as well as public law."); id. at 155 (noting that colonial assemblies "tried cases in equity, occasionally extended temporary equity power to some common law court for a select purpose, and often granted appeals, new trials, and other kinds of relief in an effort to do what 'is agreeable to Right and Justice'"); Black, Judicial Independence, supra note 205, at 110-12 (describing control over salaries); see also Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting examples of legislative judicial decisions from the Acts and Resolves of the Province of Massachusetts Bay). Although the distinction between legislative and judicial functions became more pronounced by the mid-eighteenth century, colonial assemblies continued to exercise "essentially judicial responsibilities." Wood, Creation, supra note 245, at 154. Professor Corwin thus describes colonial developments as follows: [O]wing to the dearth not only of courts and lawyers, but even of a recognized code of law, bodies like the Massachusetts General Court had thrust upon them at first a far greater bulk of judicial and adminstrative work, in to-day's sense of HeinOnline -- 101 Colum. L. Rev. 62 2001
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politics were generally blurred. 247 Consistent with the broader revolutionary conception that liberty was secure in the hands of the people (i.e., legislatures),248 many of the new states were content simply to cast off executive control over the judiciary, 2 49 while still permitting the judiciary to be subject to significant legislative control. 250 Although early governments took limited steps to separate the judiciary from the political
these terms, than of lawmaking proper, while conversely such judges as existed in these earl, days performed administrative as well as judicial functions, very much as had been the case with the earliest itinerant judges in England. By the middle of the eighteenth century, it is true, a distinct improvement had taken place in these regards. Regularly organized systems of courts now existed in all the colonies. A bar trained in the common law was rapidly arising. Royal governors sometimes disallowed enactments interfering with the usual course of justice in the ordinary courts, on grounds anticipatory of modern doctrine. Corwin, supra note 244, at 515. 247. Gordon Wood has explained: Because the courts themselves were so involved in governmental and administrative duties, it was inevitable that the line between what was political and what was judicatory would be blurred. Both the county sessions courts in Massachusetts and the county courts in Virginia before and after the Revolution remained crucially important governing bodies, assessing taxes, directing expenditures on local projects, issuing licenses, and in general monitoring the counties over which they presided. Wood, Creation, supra note 245, at 154. 248. See Forrest McDonald, Novus Ordo Seclorum 2-4 (1985); Wood, Creation, supra note 245, at 161. Consistent with that premise, many early state constitutions had left the executive and judiciary substantially dependent on the legislature. For example, some governments provided for legislative appointment of governors, the absence of an executive veto, and legislative control ofjudicial salaries. See Wood, Creation, supra note 245, at 139, 147-50. Although many such constitutions had formally adopted separation of powers, early Americans did not build on any single theory of what that doctrine required in practice. See Corwin, supra note 244, at 514 (footnotes omitted): That the majority of the Revolutionary constitutions recorded recognition of the principle of the separation of powers is, of course, well known. What is not so generally understood is that the recognition was verbal merely, for the reason that the material terms in which it was couched still remained undefined; and that this was true in particular of "legislative power" in relation to "judicial power." 249. See Wood, Creation, supra note 245, at 154-57, 160; Corwin, supra note 244, at 514. As Edward Levi has written: [I]n 1776 the complaint was with the Crown. In the colonies, the King-the executive power-had acted unchecked, often with Parliament's-but not the colonists'-consent. The doctrine of separation of powers was seen as a means of controlling executive power .... In 1776 separation of powers was a slogan; it meant that power was to be separated from the executive and given to legislatures. Edward H. Levi, Some Aspects of Separation of Powers, 76 Colum. L. Rev. 371, 374 (1976). 250. See Wood, Creation, supra note 245, at 155-56: In the judicial area the constitutions and the chaotic conditions of war had the effect of reversing the growing mid-eighteenth-century distinction between legislative and judicial responsibilities, leading during the 1770's and eighties to a heightened involvement of the legislatures in controlling the courts and in deciding the personal affairs of their constituents in private law judgments. HeinOnline -- 101 Colum. L. Rev. 63 2001
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branches, 2 51 state legislatures often retained control over judicial salaries and tenure. 252 They also intervened directly in judicial decisions, frequently passing statutes to vacate, suspend, annul, modify, or cancel judi253 cial actions in individual cases. In the years leading up to the Philadelphia Convention, many early Americans grew dissatisfied with legislative control over the judiciary, and sought a more effective separation of the two powers. Although representative government remained central to American political thought, the actions of many state governments between the Revolution and the Philadelphia Convention had cast doubt on the Revolutionary assumption that representativeness alone adequately safeguarded public liberty. 254 In particular, the blending of legislative and judicial authority ranked high
251. See id. at 160 ("[Allmost all of the Revolutionary constitutions not only established distinct upper houses in the legislature from which judges.., were excluded, but also... stripped their new governors and privy councils of their former judicial role by setting up separate courts of appeal and chancery."). 252. According to Gordon Wood: [M]ost of the early constitution-makers had little sense that judicial independence meant independence from the people. Not only did many of the early constitutions-New Jersey, Pennsylvania, Rhode Island, Connecticut, and Vermont-limit the judges' term to a prescribed number of years, but even those states granting tenure during good behavior weakened any real judicial independence by legislative control over salaries and fees and by the various procedures for removal, including simply the address of the legislature. Id. at 161 (footnotes omitted); see also Martha Andes Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 Sup. Ct. Rev. 135, 138-47 (showing that even states that had a formal separation of powers often supplied ineffective or incomplete means of ensuring judicial independence). 253. Professor Corwin thus explains: [T]he laws of New Hampshire for the years 1784-1792 are replete with entries showing that throughout this period the state legislature freely vacated judicial proceedings, suspended judicial actions, annulled or modified judgments, cancelled executions, reopened controversies, authorized appeals, granted exemptions from the standing law, expounded the law for pending cases, and even determined the merits of disputes. Nor do such practices seem to have been more aggravated in New Hampshire than in several other states. Corwin, supra note 244, at 514-15 (footnotes omitted); see also Wood, Creation, supra note 245, at 155-56, 407-09 (discussing legislative assumption of judicial functions). 254. See, e.g., William B. Gwyn, The Indeterminacy of the Separation of Powers and the Federal Courts, 57 Geo. Wash. L. Rev. 474, 479 (1989) [hereinafter Gwyn, Indeterminacy] ("Shortly after the adoption of the Revolutionary state constitutions, many political leaders lost their trust in the state legislatures which were now criticized for exercising executive and judicial powers in violation of the separation of powers."); Levi, supra note 249, at 374-75 (describing growing disappointment in legislature-dominated state governments). Some concerns arose from the legislatures' confiscation of property, printing of paper money, and suspension of debt collection. See Wood, Creation, supra note 245, at 404; William Seal Carpenter, The Separation of Powers in the Eighteenth Century, 22 Am. Pol. Sci. Rev. 32, 38-41 (1928); Corwin, supra note 244, at 519; Levi, supra note 249, at 374-75 ("The supremacy of legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts."). As Madison thus argued: "A dependence on the people is, no doubt,
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among constitutional concerns of that period. 255 In'his influential Notes on the State of Virginia,Jefferson lamented that under the Virginia Constitution, "[t]he judiciary and executive members were left dependant on the legislative, for their subsistence in office, and some of them for their continuance in it. . . . [The legislature has] accordingly, in many instances, decided rights which should have been left to judiciary controversy .... ,,56 Similar concerns were voiced in the famous report of the Pennsylvania Council of Censors, a body assembled in 1783 and 1784 to determine whether the legislature had complied with the state constitution. 2 5 7 Its report explicitly found that the commonwealth's legislature had "extend[ed] their deliberations to the cases of individuals," and that "favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief."258 Along the same lines, the Vermont Council of Censors concluded: [T]he [Vermont] General Assembly, in all the instances where they have vacated judgments, recovered in due course of law, (except where the particular circumstances of the case evidently made it necessary to grant a new trial) have exercised a power not delegated, or intended to be delegated, to them, by the Constitution .... It supercedes the necessity of any other law than the pleasure of the Assembly, and of any other court than themselves: for it is an imposition on the suitor, to give him the trouble of obtaining, after several expensive trials, a final judgment agreeably to the known established laws of the land; if the Legislature, by a sovereign act, can interfere, reverse the judgment, and decree in such manner, as they, unfettered by rules, 259 shall think proper. Many Americans thus came to believe that "[l]egislatures must now be prevented from doing what they had done for over a century, exercising 260 judicial functions."
the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." The Federalist No. 51, supra note 9, at 322 (James Madison). 255. See Wood, Creation, supra note 245, at 407-09; see also INS v. Chadha, 462 U.S. 919, 960-61 (1983) (Powell, J., concurring in the judgment) ("During the Confederation, the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown."); Levi, supra note 249, at 378 ("[TIhe judiciary, which had been subject to significant encroachments by the revolutionary period legislatures, began to be seen as another important bulwark against tyranny."). 256. Thomas Jefferson, Notes on the State of Virginia 120 (William Peden ed., New York, W.W. Norton & Co. 1954) (1781). 257. See The Federalist No. 48, supra note 9, at 311-12 (James Madison) (describing work of Pennsylvania Council of Censors). 258. Report of the Committee of the Council of Censors 6 (Francis Bailey ed., 1784). 259. Address of the Council of Censors (Feb. 14, 1786), reprinted in Vermont State Papers 1779-1786, at 531, 540 (W. Slade ed., Middlebury, J.W. Copeland 1823) [hereinafter Vermont Council of Censors]. 260. Wood, Creation, supra note 245, at 452. HeinOnline -- 101 Colum. L. Rev. 65 2001
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The Founders adopted constitutional safeguards ofjudicial independence against this background. 261 While the principle of separated powers served diverse ends, 262 a recurring theme was that judicial independence furthered the related constitutional objectives of constraining
official discretion and promoting the rule of law. 263 The English liberal 2 64
tradition had often equated liberty with security against arbitrariness. Such security, in turn, would come from governance according to known 265 and established laws, rather than the exercise of official discretion.
261. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221 (1995) ("Th[e] sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution." (citing Corwin, supra note 244, at 514-17)). 262. Professor William Gwyn has distilled the following objectives from the most prominent separation-of-powers writings prior to the founding: (1) to create greater governmental efficiency; (2) to assure that statutory law is made in the common interest; (3) to assure that the law is impartially administered and that all administrators are under the law; (4) to allow the people's representatives to call executive officials to account for the abuse of their power; and (5) to establish a balance of governmental powers. Gwyn, Meaning, supra note 195, at 127-28; see also Cass R. Sunstein, Constitutionalism After the New Deal, 101 Harv. L. Rev. 421, 432-37 (1987) (discussing purposes of separation of powers); Verkuil, supra note 243, at 303-04 (same). 263. Though the "rule of law" is susceptible to different understandings, MargaretJ. Radin, Reconsidering the Rule of Law, 69 B.U. L. Rev. 781, 781 (1989), I use the concept here in the sense described by Lon Fuller, who said that "the very essence of the Rule of Law is that in acting upon the citizen ... a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties." Lon L. Fuller, The Morality of Law 209-10 (rev. ed. 1969). That objective was to be formalized in the Due Process Clause. See, e.g., Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement."); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 290 n.12 (1982) ("[V]ague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possibility of arbitrary and discriminatory enforcement."); Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) ("[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (footnotes omitted)); Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966) ("[T]he 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs."). 264. See Gwyn, Meaning, supra note 195, at 11-27. Writing in that tradition earlier this century, Dicey put the point well when he said that "wherever there is discretion, there is room for arbitrariness, and . . . in a republic no less than a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects." A.V. Dicey, Introduction to the Study of the Law of the Constitution 110 (Liberty Fund reprint 8th ed. 1915). 265. See, e.g., 1 Blackstone, supra note 9, at *130 (emphasizing that liberty "cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission HeinOnline -- 101 Colum. L. Rev. 66 2001
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Consistent with that premise, the theoretical and practical justifications for judicial independence commonly emphasized the objective of promoting a government of laws. First, influential separation-of-powers theorists argued that the separation of lawmaking from judging would give legislatures an important incentive to enact clear and constraining laws, rather than granting the judiciary excessive discretion through the statutes enacted. 266 So long as the legislature retained control over the law's executors, 26 7 it would more likely enact vague laws leaving broad discretion to those who applied them. As Montesquieu put it, when lawmaking and implementation are under common control, "[t] he body of the magistracy, as executor of the laws, retains all the power it has given itself as legislator." 268 With an independent executor, however, the lawmaker would exercise greater restraint in delegating discretion to those who implement the law.269 Blackstone thus explained that where the lawmaker and executor are distinct, "the former will take' care not to entrust the latter with so large a power, as may tend to the subversion of it's [sic] own independence, and therewith of the liberty of the subject. '2 70 While no single theorist defined the
of the laws"); Locke, supra note 198, 131, at 68 ("[W]hoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees .... ); id. 136, at 71 (contrasting "rule by extemporary arbitrary decree," with governance "by promulgated standing laws"); Montesquieu, The Spirit of the Laws bk. VI, ch. 3, at 76 (Anne M, Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748) ("In despotic states there is no law; the judge himself is the rule."); id. bk. XI, ch. 6, at 158 ("J]udgments should be fixed to such a degree that they are never anything but a precise text of the law. Ifjudgments were the individual opinion of ajudge, one would live in this society without knowing precisely what engagements one has contracted."); see also Vile, supra note 187, at 98 (noting Montesquieu's view that judges must adhere to the letter of the law and tracing that principle to the Civil War-era writings of Lilburne and Harrington). 266. To be sure, it was widely understood, even in the eighteenth century, that no statute could clearly prescribe, in advance, the resolution of all issues that might arise in application. See supra note 9 and accompanying text. 267. Since the concept of executive power had traditionally included judicial functions, many writings of this era use the term "executor" to include judges. See Gwyn, Meaning, supra note 195, at 5. 268. Montesquieu, supra note 265, at 157. Blackstone expressed the same theory as follows: In all tyrannical governments the supreme magistracy, or the right both of making and enforcing the laws, is vested in one and the same man, or one and the same body of men ....The magistrate may enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in the quality of dispenser ofjustice, with all the power which he as legislator thinks proper to give himself. I Blackstone, supra note 9, at *142 269. For a modern articulation of an analogous theory, see Peter L. Strauss & Andrew R. Rutten, The Game of Politics and Law: A Response to Eskridge and Ferejohn, 8 J.L. Econ. & Org. 205, 207 (1992) (arguing that the legislative veto would "encourage less precise and less frequent legislation by depriving Congress of motivation to solve its substantial communications problems at the time of enactment"). 270. 1 Blackstone, supra note 9, at *142. HeinOnline -- 101 Colum. L. Rev. 67 2001
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precise version of separated powers to which the Founders subscribed, 27 1 tradithese writings suggest that at least one salient separation-of-powers272 tion strongly equated judicial independence with the rule of law. Second, if the legislature controlled the judicial power,judges might make ad hoc alterations of the law, rather than faithfully interpreting it.
As Locke put it in his influential Second Treatise of Government, it is "too
great a temptation to human frailty, apt to grasp at power for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from
obedience to the laws they make." 273 The Vermont Council of Censors
sounded a similar theme: If one set of men are to enact and execute our laws, and when they do not find one to answer a particular purpose, to make it instanter;,or in other words, if they are to possess all the author271. See Gwyn, Indeterminacy, supra note 254, at 263. This point should not be overstated. Although no individual theorist determined the shape of American government, it must be emphasized that the views of Locke, Montesquieu, and Blackstone on the separation of powers had a significant impact on the Founders' conception of the constitutional structure. See, e.g., The Federalist No. 47, supra note 9, at 301 (James Madison) ("The oracle who is always consulted and cited on this subject [the separation of powers] is the celebrated Montesquieu."); Vile, supra note 187, at 66, 102-06, 112-16 (discussing influence of Locke, Montesquieu, and Blackstone on separation-of-powers theory); Carpenter, supra note 254, at 37 ("The writings of Montesquieu were accepted at Philadelphia as political gospel."); Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm.& Mary L. Rev. 211, 213 (1989) (noting that Montesquieu was "the most frequently cited" theorist of the separation of powers); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 488 (1989) ("With a lineage that extended back to Classical Greece and included such English political theorists as Locke and Blackstone, the idea of a government structured by the separation of powers came to the Americans principally through the writings of Montesquieu."); Malcolm P. Sharp, The Classical American Doctrine of "The Separation of Powers," 2 U. Chi. L. Rev. 385, 393 (1935) ("Montesquieu and Blackstone had of course great authority with our American Fathers."). 272. See David F. Epstein, The Political Theory of The Federalist 127-30 (1984); Gwyn, Meaning, supra note 195, at 128 n.1; Verkuil, supra note 243, at 305. The rule of law was a consistent theme in English separation-of-powers writings corresponding to the development of the modern English political system. See Gwyn, Meaning, supra note 195, at 42-43, 52, 54-55, 87 (discussing judicial independence as advocated by John Lilburne, James Harrington, John Sadler, and John Toland). 273. Locke, supra note 198, 143, at 76; see also 1 Blackstone, supra note 9, at *259 (explaining that if the judicial power were joined with the legislative, "the life, liberty, and property, of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe."); Montesquieu, supra note 265, bk. XI, ch. 6, at 157 ("If [the power ofjudging] were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator."); Isaac Penington, A Word for the Commonweale 9-10 (London, 1650) (combining the power of legislation and implementation would permit the government "to redresse things at present for which there is as yet no Law, and to provide future remedies for things amisse, which the law did not foresee"), quoted in Gwyn, Meaning, supra note 195, at 57.
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ity as judges, which they, as [ ]legislators, are pleased, from time to time, to confer on themselves, unhappy indeed is the lot of 2 74 this people. In other words, if lines between the legislative and judicial functions were indistinct, the judge might interpret the law in ways unwarranted by the statute itself.2 75 This, in turn, would undermine the ideal of governance according "to the known established laws of the land."2 76
Unquestionably, this background has implications for the equity of the statute. Although early Americans of course were not of one mind about the desirability or, indeed, the viability of reducing the law to determinate statutory commands, 277 the fact remains that the Founders
274. Vermont Council of Censors, supra note 259, at 540. 275. Joseph Story later explained this point as follows: It will be apt to decree, what best suits the opinions of the day; and to forget, that the precepts of the law rest on eternal foundations, and are not to be changed at the arbitrary will of thejudges. The rulers and the citizens will not stand upon an equal ground in litigations. The favorites of the day will overcome by their power, or seduce by their influence. And thus the fundamental maxim of a republic, that it ought to be a Government of laws, and not of men, will be silently disproved, or openly abandoned. Joseph Story, A Familiar Exposition of the Constitution of the United States 304, at 184 (New York, Harper & Bros. 1840). Or, as John Norton Pomeroy put it later in the nineteenth century: If the legislature were also judges, their decisions would not be based upon the law as it is; but, as it would be impossible for the same men to keep their two characters entirely distinct, their judgments would rather be arbitrary enactments, special measures of legislation for each particular case. Thus all certainty as to the law would be lost. Pomeroy, Constitutional Law, supra note 212, 170, at 109-10. 276. Vermont Council of Censors, supra note 259, at 540. 277. As Gordon Wood has shown, this ambivalence was reflected in a codification movement that took form in the states during the 1770s and 1780s. Wood, Creation, supra note 245, at 300-05. Much of the impetus for this movement grew from a suspicion of judicial discretion dating back to abuses that had occurred in colonial times. Id. at 297-99, 301-02. As one of the leaders of the reform movement, Thomas Jefferson, wrote: "Let mercy be the character of the law-giver, but let the judge be a mere machine." Letter from Thomas Jefferson to Edmund Pendleton (Aug. 26, 1776), in 1 The Papers of Thomas Jefferson 503, 505 (Julian P. Boyd ed., 1950). To be sure, by the mid-1780s, many reformers began to lose faith in codification. See Wood, Creation, supra note 245, at 302. Their doubts arose from the piecemeal character of some state efforts at codification, the growing appreciation that statutes could not eliminate all judicial discretion, and a heightened perception that legislatures could not be counted upon to guarantee justice and equity in their enactments. Id. at 302-04. Many early Americans therefore called for a larger judicial role in making laws just and equitable. Id. at 303. Nonetheless, Wood suggests that "most Americans" in this period not only believed in consent as the basis of law, but also continued to harbor from colonial days a fear of excessive judicial discretion. Id. at 304; see also Letter from Thomas Jefferson to Phillip Mazzei (Nov. 28, 1785), in 9 The Papers of Thomas Jefferson, supra, 67, 71 ("Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it's [sic] equity, and the whole legal system becomes incertain."); Madison's Observations on Jefferson's Draft of a Constitution for Virginia (1788), in 6 The Papers of Thomas Jefferson, supra, 308, 315 (arguing that ifjudges have the final say in setting aside laws, "[t]his makes the Judiciary
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adopted a constitutional structure that had long been linked with that objective. As the previous discussion shows, the intellectual tradition of the separation of powers clearly associated the separation of the legislative from the judicial power with the promotion of legal determinacy and the limitation of official discretion. That objective, moreover, fit tightly with complaints about official discretion that many had voiced in relation to the conflation of powers in certain states after American independence. Viewed in light of that intellectual tradition and the practical concerns that inspired its invocation by the Founders, it is difficult to square the separation of legislation from judging with the broadly discretionary powers associated with the equity of the statute. It would make little sense to adopt a structure that promotes clearer and less discretionary statutes if judges could then reshape those laws in the light of their conception of reason.2 78 Accordingly, the history surrounding the separation of powers, like the constitutional structure itself, contradicts the assumption that the English equity of the statute was assimilated implicitly into "the judicial Power of the United States." 2 79 B. Bicameralism and Presentment and Legislative Compromise The separation of legislation and judging lends force to a distinct structural concern that contradicts the equity of the statute-the structural policy reflected in the bicameralism and presentment requirements of Article I, Section 7 of the Constitution. In a system in which the line between proper legislative and judicial functions is relatively indistinct (as at common law),280 the precise process of statutory enactment has a less obvious bearing on the appropriate interpretive method. 281 If the legislaDepartment paramount in fact to the Legislature, which was never intended and can never be proper"). Indeed, even in his old age, Jefferson continued to lament the judicial discretion implicit in "the honied Mansfieldism of Blackstone." Letter from Thomas Jefferson to James Madison (Feb. 17, 1826), in Thomas Jefferson: Writings 1512, 1513-14 (Merrill Peterson ed., 1984). 278. Despite the natural law justification for the equity of the statute, early Americans had begun to recognize that judges exercised discretion when they reshaped statutes in light of the spirit and reason of the law. See Wood, Creation, supra note 245, at 300-01, 304. 279. One might also infer, of course, that making the judiciary independent of Congress was meant to make the judiciary less responsive to the will of Congress. On that assumption, the separation of powers might be understood to free the judiciary to perform an independent lawmaking role. See Eskridge, Dynamic Interpretation I, supra note 68, at 1501; Eskridge, Dynamic Interpretation II, supra note 87, at 113. Indeed, if the Founders were primarily concerned about legislative interference in the judicial process, rather than the exercise of arbitrary power as such, then the creation of judicial independence might have made the exercise of broad judicial powers safer and more acceptable. Such assumptions, however, would contradict an intellectual and historical background that clearly equated the separation of powers with the control of official discretion. 280. See supra Part II.B.1-3. 281. This attitude is especially to be expected if, as some have argued, acts of Parliament were long understood primarily as means to clarify or more effectually to implement custom and natural law. See 1 Ewart Lewis, Medieval Political Ideas 4-5 HeinOnline -- 101 Colum. L. Rev. 70 2001
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ive and judicial powers were sharply distinguished by the Constitution, then it becomes difficult to imagine that the Founders designed an elaborate method of legislation, while simultaneously granting judges broad independent authority to alter the results outside that carefully constructed process. Because both textualists and anti-textualists sometimes oversimplify the implications of bicameralism and presentment, the relevance of these requirements requires elaboration. As discussed, modem textualists argue that making a clear statute coherent with its background purpose, rather than enforcing the rules embedded in the text, disturbs any lines of compromise reflected in the text.282 Arguably, this claim, standing alone, begs the antecedent question of whether the Constitution places a premium on compromise or coherence, if either. Closer analysis, however, confirms that courts should respect legislative compromise in order to preserve an important policy implicit in bicameralism and presentment-the protection of political minorities against majority oppression. To frame the analysis, it is helpful to start with the conventional textualist understanding of the implications of bicameralism and presentment. Textualists often rely on the formal claim that bicameralism and presentment mandate textualism because the enacted text alone has survived the legislative process requirement of Article I, Section 7. 2 8s In formal terms, however, invoking the requirements of bicameralism and presentment provides us merely with a rule of recognition, telling us only which texts to interpret as enacted law.284 The process alone does not tell us how to interpret the law thus enacted. Two considerations highlight this point. First, textualists themselves often interpret statutes using sources (dictionaries, common law cases, canons of interpretation) that 285 have not cleared the formal process of bicameralism and presentment.
(1954); McIlwain, supra note 159, at 109-31; Vile, supra note 187, at 26-28. To the extent that English legal theory viewed acts of Parliament as implementations of common or natural law principles, it should hardly be surprising for common law judges to consider acts of Parliament and common law precedents as different manifestations of a single body of law. See supra note 187 and accompanying text. 282. See supra text accompanying notes 72-73. 283. See Begier v. IRS, 496 U.S. 53, 68 (1990) (Scalia, J., concurring) ("Congress conveys its directions in the Statutes at Large, not in excerpts from the Congressional Record."); Easterbrook, Text, History, and Structure, supra note 62, at 68-69 ("No matter how well we can know the wishes and desires of legislators, the only way the legislature issues binding commands is to embed them in a law."). 284. See H.L.A. Hart, The Concept of Law 97-107 (1961) (defining rules of recognition). 285. See, e.g., Babbitt v. Sweet Home Chapter of Cmties. for a Great Or., 515 U.S. 687, 717-18 (1995) (Scalia, J., dissenting) (using pre-enactment cases and treatises to help define statutory term of art); Moskal v. United States, 498 U.S. 103, 122-25 (1990) (Scalia, J., dissenting) (same). Justice Scalia has also joined opinions of the Court applying substantive rules of construction, such as "the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor." King v. St. Vincent's Hosp., 502 U.S. 215, 220-21 n.9 (1991).
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Hence, that constitutional process, standing alone, cannot tell us whether to include or exclude particular tools of construction. Second, the process of atextual, purposive interpretation is not intrinsically incompatible with an exclusive reliance on the text. Rather, courts often derive a specific provision's background purpose from the tenor or structure of the statute as a whole; 2 86 yet the latter source has surely cleared the hurdle of bicameralism and presentment. If textualists object to using background statutory purpose to shift the level of generality of one or more clear and specific statutory provisions, then the basis for that objection must come from beyond the formal requirements of Article I, Section 7. Even when one consults the purposes implicit in bicameralism and presentment, much of the evidence speaks inconclusively as to the appropriate interpretive method. Few constitutional theories have gained more traction than the idea that our government is structured "to break 28 7 and control" what Madison referred to as "the violence of faction." Although important recent scholarship has questioned whether Madison's particular writings on factions enjoyed wide circulation during the ratification campaign,2 88 the objective to control factions is surely manifest in the design of the legislative power. 28 9 In any case, many other
286. See, e.g., Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 401 (1987) ("(W]e are not limited to considering the statute under which respondents sued, but may consider any provision that helps us to understand Congress' overall purposes in the National Bank Act."); Pub. Serv. Comm'n of N.Y. v. Mid-La. Gas Co., 463 U.S. 319, 327 (1983) (concluding that the "purposes" of the Natural Gas Policy Act "are rooted in the history of federal natural gas regulation before 1978 and in the overall structure of the statute"). 287. The Federalist No. 10, supra note 9, at 77 (James Madison). Madison defined a faction as "a number of citizens, whether amounting to a majority or minority of the whole,
who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Id. at 78. Scholars have relied on Madison's theory of factions in numerous contexts. See, e.g., Easterbrook, The Court and the Economic System, supra note 62, at 14-18; Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 Harv. L. Rev. 622, 628 (1985); William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Va. L. Rev. 275, 277-78 (1988); Macey, supra note 72, at 242-50; Cass R. Sunstein, Interest Groups in American Public Law, 38 Stan. L. Rev. 29, 68-72 (1985). 288. See Larry D. Kramer, Madison's Audience, 112 Harv. L. Rev. 611, 615-16 (1999). 289. Putting aside Professor Kramer's impressive evidence that Madison's views did not gain wide circulation, id. at 637-71, there is a more general reason not to place undue
reliance on the isolated statements of Madison in The Federalist No. 10. Specifically, the ratification debates occurred at different times and in different places, and there is no reason to believe that any particular writing was regarded as authoritative. See Manning, Constitutional Adjudication, supra note 234, at 1337, 1338-39. To the extent that I rely on founding-era documents to support structural inferences from bicameralism and presentment, I do so only because they persuasively account for the purposes apparent in that carefully designed structure. See supra note 234.
For contemporary sources arguing that the design of bicameralism and presentment addresses factional influence, see, for example, Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. Rev. 1145, 1183 (1998) ("[B]y acting to disperse legislative power among diverse
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founding-era writings emphasized that by dividingthe legislative power among independent bodies, bicameralism and presentment would make it more difficult for any group actuated by self-interest to capture the legislative process. 290 And, quite apart from any concern with factions, some influential Founders understood bicameralism and presentment as a device to promote caution and deliberation in the lawmaking processto restrain the momentary passions that sometimes infect the political system. 291 Although such considerations might reasonably suggest that judges should scrupulously enforce the precise outcomes of this carefully
actors with conflicting interests, they help prevent any one 'faction' from capturing government and threatening 'the liberty and security of the governed."' (quoting John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 690 n.70 (1997) [hereinafter Manning, Textualism as Nondelegation])); RichardJ. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. Rev. 1239, 1249 (1989) ("The Framers created two antidotes to factionalism in Congress: bicameralism and presentment. Bicameralism forces a potential faction to capture both Houses of Congress simultaneously. Presentment gives the president-the politically accountable entity least susceptible to capture by factions-a voice in the legislative process."). 290. See Wood, Creation, supra note 245, at 559-61; see also The Federalist No. 62, supra note 9, at 378-79 (James Madison) (" [A] senate, as a second branch of the legislative doubles the security to the assembly distinct from and dividing the power with a first .... people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient."); The Federalist No. 73, supra note 9, at 443 (Alexander Hamilton) (deeming it "far less probable that culpable views of any kind should infect all the parts of the government at the same moment and in relation to the same object than that they should by turns govern and mislead every one of them"); 1 The Works of James Wilson 291-92 (Robert G. McCloskey ed., 1967) (arguing that a unicameral legislature is subject to "violent fits of despotism, injustice, and cruelty," and that the "violence of one part of the government" might be "controlled by the constitutional interposition of another part"). For a somewhat later view, see 2 Joseph Story, Commentaries on the Constitution of the United States 276, at 202-03 (Carolina Acad. Press 1987) (1833) ("It is far less easy to deceive, or corrupt, or persuade two bodies into a course, subversive of the general good, than it is one; especially if the elements, of which they are composed, are essentially different."). Presentment advances a similar purpose. The veto, Hamilton explained, "establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body." The Federalist No. 73, supra note 9, at 443 (Alexander Hamilton); see also 2 Story, supra, 451, at 320' ("[T]he [veto] power is important, as an additional security against the enactment of rash, immature, and improper laws. It establishes a salutary check upon the legislative body, calculated to preserve the community against the effects of faction, precipitancy, unconstitutional legislation, and temporary excitements, as well as political hostility."). The veto may serve as a particularly effective check on faction, in part, because the President is elected by a national constituency. See INS v. Chadha, 462 U.S. 919, 951 (1983) ("The President's participation in the legislative process was to protect the whole people from improvident laws."); cf. Myers v. United States, 272 U.S. 52, 123 (1926) (noting that "the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature whose constituencies are local and not countrywide"). 291. See Chadha, 462 U.S. at 951 ("The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full HeinOnline -- 101 Colum. L. Rev. 73 2001
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designed deliberative process, the same considerations might also support interpretative rules designed to reinforce the underlying values that the process seeks to advance. That is to say, one might argue thatjudges should interpret legislation to resist the seemingly unprincipled compromises struck by interest groups (factions) and, instead, to give statutes the coherence that one would expect from a well-functioning deliberative process. 29 2 If the latter view is accepted, then it would support the aims of the equity of the statute-for example, the impulse to treat like cases alike, notwithstanding the limited reach of a statutory text, or to exclude a harsh result that falls within the text but does not materially advance the statute's purpose. If, however, one examines more closely the precise means by which bicameralism and presentment protect the legislative process from capture by factions, the process seems to cut decidedly in favor of respecting the lines of legislative compromise. Modem political scientists have identified the exact mechanism through which bicameralism and presentment promote their evident purpose of protecting against factions. In particular, because the members of each house of a bicameral legislature represent different constituencies, bicameralism effectively adopts a
study and debate in separate settings."). As Hamilton put it: The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of due deliberation, or of those missteps which proceed from the contagion of some common passion or interest. The Federalist No. 73, supra note 9, at 443 (Alexander Hamilton); see also 1 The Works of James Wilson, supra note 290, at 294 ("In planning, forming, and arranging laws, deliberation is always becoming, and always useful."). Conversely, as the post-revolutionary experience with state governments showed, society had much to fear from momentary passions-from impetuousness or haste in lawmaking. See The Federalist No. 62, supra note 9, at 379 (James Madison) ("The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions . . . ."). The calming influence of bicameralism is nicely captured in an analogy attributed to George Washington: There is a tradition that, on his return from France, Jefferson called Washington to account at the breakfast-table for having agreed to a second chamber. "Why," asked Washington, "did you pour that coffee into your saucer?" "To cool it," quoth Jefferson. "Even so," said Washington, "we pour legislation into the senatorial saucer to cool it." 3 Farrand, supra note 237, at 359. The veto also may contribute to deliberation. See The Pocket Veto Case, 279 U.S. 655, 678 (1929) (arguing that it is an "essential ... part of the constitutional provisions, guarding against ill-considered and unwise legislation, that the President... should have the full time allowed him for determining whether he should approve or disapprove a bill, and if disapproved, for adequately formulating the objections that should be considered by Congress"); I The Works ofJames Wilson, supra note 290, at 432 (stating that the President's qualified veto will "secure an additional degree of accuracy and circumspection in the manner of passing the laws"). 292. See Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539, 1581-85 (1988). HeinOnline -- 101 Colum. L. Rev. 74 2001
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supermajority requirement. 29 3 By raising decision costs, this arrangement makes it more difficult for factions (what we would call interest groups) to pass legislation to secure private advantage. 29 4 This understanding of the process fits tightly with the Madisonian concern that the majority would invade the rights of the minority in an unchecked republi295 can government. The particular brand of bicameralism established by the U.S. Constitution, moreover, explicitly amplifies the protection and power of a clearly identifiable national minority-the residents of the smaller states. Although various considerations might explain bicameralism in gen-
293. James M. Buchanan & Gordon Tullock, The Calculus of Consent 235-36 (1962). This idea is widely accepted among legislation scholars. See, e.g., William T. Mayton, The Possibilities of Collective Choice: Arrow's Theorem, Article I, and the Delegation of Legislative Power to Administrative Agencies, 1986 Duke L.J. 948, 956 ("Given that members of the House and Senate represent different constituencies and given that these bodies must concur on a proposed law, a supermajority... is in effect required for much of the legislation approved by Congress."); Michael B. Rappaport, Amending the Constitution to Establish Fiscal Supermajority Rules, 13J.L. & Pol. 705, 712 (1997) ("It is well known that bicameralism functions like a supermajority requirement. To secure a majority in two different houses, which are elected by different groups of voters, requires more [public] support ... than simply securing a majority in one house. The presidential veto has the same effect as bicameralism."); William H. Riker, The Merits of Bicameralism, 12 Int'l Rev. L. & Econ. 166, 167-68 (1992) ("[T]he effect of breaking the unicameral house into a tricameral body is about the same as going from simple-majority to supermajority rule in the unicameral body, namely delay and stability."). 294. See Robert Cooter &Josef Drexl, The Logic of Power in the Emerging European Constitution: Game Theory and the Division of Powers, 14 Int'l Rev. L. & Econ. 307, 325 (1994) ("Bicameralism protects minorities more than unicameralism because it is harder for any group to obtain a majority in two houses rather than in one house."); Macey, supra note 72, at 248 (arguing that by imposing a supermajority requirement, bicameralism and presentment raise the decision costs for interest groups seeking self-interested legislation). 295. See, e.g., James Madison, Vices of the Political System of the United States, in 9 The Papers of James Madison 345, 355 (Robert A. Rutland et al. eds., 1975) ("In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals?"); Editorial Note to James Madison, Vices of the Political System of the United States, supra, at 347 (asserting that Madison questioned "the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights"); Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 The Papers of James Madison, supra, at 205, 213 ("If two individuals are under the biass of interest or enmity agst. a third, the rights of the latter could never be safely referred to the majority of the three. Will two thousand individuals be less apt to oppress one thousand, or two hundred thousand, one hundred thousand?"); Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in 14 The Papers of Thomas Jefferson, supra note 277, at 19 ("[T]he invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents."). For further discussion of founding-era concerns about unchecked legislative power, see supra note 254 and accompanying text. HeinOnline -- 101 Colum. L. Rev. 75 2001
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eral, 29 6 American bicameralism clearly reflects the federalism interests that account for the states' equal representation in the Senate. The compromise that produced that arrangement of course was an essential element of the constitutional structure; indeed, it is the one part of the design that Article V purports to place beyond even the amendment process. 29 7 Although often associated with the protection of states qua states, 298 the more immediate effect of equal representation is to assign the inhabitants of the small states disproportionate power, relative to their populations, to defeat legislation that promotes the interests of the larger states at their expense. Bicameralism and presentment thus disclose an unmistakable emphasis-to give minorities, in general, and the minority consisting of small-state residents, in particular, exceptional power to block legisla29 9 tion as a means of defense against self-interested majorities.
296. Buchanan and Tullock, for example, argue that bicameralism is preferable to a pure supermajority requirement because the latter would entail "significantly greater" decision costs to achieve the same stopping power. Buchanan & Tullock, supra note 293, at 236. Saul Levmore, in contrast, argues that governments often use bicameralism, rather than unicameralism combined with a supermajority requirement, because "only bicameralism can at the same time preserve all strong-Condorcet alternatives." Saul Levmore, Bicameralism: When Are Two Decisions Better than One?, 12 Int'l Rev. L. & Econ. 145, 158 (1992); see also id. at 156 (explaining why a "strong-Condorcet alternative"-that is, an alternative policy simultaneously preferred by multiple sets of voters-will emerge in a bicameral system, but not in a supermajority system). The advantage of bicameralism might also relate to the possibility of deliberation. Cass Sunstein suggests that the division of constitutional power might be justified, in part, by recent empirical evidence showing that group deliberation commonly leads to polarization in the direction of a more extreme point in the group's pre-deliberation views. Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 Yale L.J. 71, 110-11 (2000). 297. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551-52 (1985) (discussing Senate's essential role in protecting interests of states); INS v. Chadha, 462 U.S. 919, 950 n.15 (1983) ("The Great Compromise was considered so important by the Framers that they inserted a special provision to ensure that it could not be altered, even by constitutional amendment, except with the consent of the states affected."). Article V provides that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." U.S. Const, art. V. 298. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 558 (1954). 299. The bias in favor of blocking legislation did not go unnoticed during the debates over the Constitution's adoption. See, e.g., The Federalist No. 62, supra note 9, at 378 (James Madison) (acknowledging that "this complicated check on legislation may in some instances be injurious as well as beneficial"); The Federalist No. 73, supra note 9, at 443 (Alexander Hamilton) (noting that "the power of preventing bad laws includes that of preventing good ones"). And both the costs and benefits associated with a burdensome legislative process were frankly acknowledged in these debates. See, e.g., The Federalist No. 62, supra note 9, at 378 (arguing that "the facility and excess of law-making seem to be the diseases to which our governments are most liable"); The Federalist No. 73, supra note 9, at 444 ("The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones."). HeinOnline -- 101 Colum. L. Rev. 76 2001
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Assigning a minority this exceptional power makes it more crucial for interpreters to respect the lines of legislative compromise. The minority's power to veto legislation carries with it the lesser power to insist, as the price of assent, upon less than what the bill's proponents ideally would desire-and, perhaps, less than what a reasonable person would view as a fully coherent approach to the mischief sought to be remedied.3 00 A resulting compromise, for example, might not reach all phases of a perceived mischief or might not grant the most effective remedy for the mischief actually addressed.3 0 1 If the legislative process is designed to
300. See Posner, Statutory Interpretation, supra note 50, at 809 (finding it "often true" that a statute "is a compromise between one group of legislators that holds a simple remedial objective but lacks a majority and another group that has reservations about the objective"). 301. The Court accordingly has emphasized that Congress may be unanimous in its intent to stamp out some vague social or economic evil; however, because its Members may differ sharply on the means for effectuating that intent, the final language of the legislation may reflect hardfought compromises. Invocation of the 'plain purpose' of legislation at the expense of the terms of the statute itself takes no account of the processes of compromise .... Bd. of Governors of the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986); see also Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994) ("Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal."); Indianapolis Life Ins. Co. v. United States, 115 F.3d 430, 434 (7th Cir. 1997) (Easterbrook,J.) ("[T]he ultimate purpose of a tax code is to raise revenue, and the many rough cuts that result from the political battles about how much will be paid by whom should not be revised, in litigation, to make them look more like one side's idea of an 'ideal' tax."); Hrubec v. Nat'l R.R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995) (Easterbrook, J.) ("Hrubec supposes that if a statute identifies an evil, such as the unauthorized disclosure of return information, then it necessarily condemns all manifestations of that evil. Not so. Many laws are compromises, going thus far and no further in pursuit of a goal."). The importance of respecting legislative compromise is confirmed by an important modern strand of constitutional doctrine. The Court's most basic (indeed, its default) standard of judicial review is the rational-basis test, which it applies to routine statutory classifications under the Due Process and Equal Protection Clauses. E.g., U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 175-76 (1980); Vance v. Bradley, 440 U.S. 93, 102, 111 (1979); Flemming v. Nestor, 363 U.S. 603, 611 (1960). For statutes not involving invidious classifications or touching upon fundamental rights, the courts must sustain a statutory classification if any set of facts reasonably may be conceived to justify the lines drawn by the statute. E.g., Bowen v. Gilliard, 483 U.S. 587, 601 (1987); Dandridge v. Williams, 397 U.S. 471, 485 (1970). This forgiving standard of review reflects important conclusions about the respective authority of the legislature and the courts in routine statutory matters. In particular, it explicitly embraces the unruliness of legislative compromise, rather than authorizing judges to impose greater statutory coherence in the name of due process or equal protection. The Court thus emphasizes that "[t]he problems of government are practical ones and mayjustify... rough accommodations," Dandridge, 397 U.S. at 485, and that "[t]he process of legislating often involves tradeoffs, compromises, and imperfect solutions." Preseault v. ICC, 494 U.S. 1, 18-19 (1990). A statute may validly be "to some extent both underinclusive and overinclusive," Vance, 440 U.S. at 108, and it is "constitutionally irrelevant" that a statute "does not extend to all to whom the postulated rationale might in logic apply." Flemming, 363 U.S. at 612. Although the equity of the HeinOnline -- 101 Colum. L. Rev. 77 2001
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give minorities an exaggerated right to insist upon compromise, that basic objective would be undermined if judges claimed equitable powers to transform a clear, detailed statute into more coherent expression of policy or, indeed, to provide a more effective remedy than the explicit one prescribed by Congress. Interpreting statutes to be more coherent and just expressions of legislative purpose, then, risks evasion of a constitutionally ordained purpose-to give minorities a disproportionate say in the legislative process. At the same time, the broad judicial lawmaking power implicit in the equity of the statute would potentially undermine the federalism objectives of bicameralism and presentment. The extraordinary protection that small states enjoy by virtue of disproportionate representation in the Senate would be undermined if courts, in the name of the equity of the statute, could tinker with the output of that carefully wrought legislative process. In contrast with the Senate, the federal courts do not represent the states and are designed to be immune from ordinary political processes. 30 2 And there is no reason to expect equitable interpretation to replicate the protections secured by the legislative process. 30 3 One surely cannot tell whetherjudges would invoke the equity of the statute in a way that would systematically undercut, rather than enhance, the particular federalism interests sought to be protected by bicameralism and presentment. But this uncertainty itself suggests that the most reliable way to protect those interests is to adhere closely to a constitutional process that was carefully designed to serve them.
C. Early American Attitudes Toward the Equity of the Statute
As one might expect, the evidence of early American attitudes toward the equity of the statute is complex and mixed. Yet, at a minimum, one can safely conclude that the early history does not contradict-and, if anything, tends to support-the structural argument against transplanting the English equity of the statute doctrine to American constitutional circumstances. Although some early Americans undoubtedly viewed the equity of the statute as an appropriate method of interpretation for the federal courts, nothing close to a consensus developed around that asstatute and the rational-basis test apply in different contexts (statutory interpretation versus judicial review), the rational-basis cases reflect the crucial constitutional judgment that courts in our system of government must respect even imperfect legislative compromises, as long as they meet a minimal standard of rationality. 302. See City of Milwaukee v. Illinois, 451 U.S. 304, 317 n.19 (1981) (noting that "the States are represented in Congress but not in the federal courts"); Bradford R. Clark, Translating Federalism: A Structural Approach, 66 Geo. Wash. L. Rev. 1161, 1169-70 (1998). Of course, the Senate must give its advice and consent to the appointment of federal judges. U.S. Const. art. II, 2, cl. Upon confirmation, however, these judges 2. enjoy salary protection and tenure during good behavior. U.S. Const. art. III, 1. 303. See Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1269-70 (1996) (discussing federalism objectives of bicameralism and presentment).
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sumption. If anything, the consensus was far closer to what we would call the faithful agent theory. To the extent that early Americans did embrace equitable interpretation, moreover, that phenomenon may be attributable to the fact that the doctrine was a widely known (albeit anachronistic) rule of construction. Hence, one might expect some Americans to apply that doctrine uncritically, simply because it appeared in the legal sources with which they were most familiar-English treatises and cases. In contrast with some early practical interpretations of the Constitution,3 0 4 bare invocations of the equity of the statute are therefore unlikely to reflect a considered judgment about its consistency with the complex constitutional structure. In view of both of these circumstances, the early history cannot be said to support the claims advanced by the modern proponents of equitable interpretation. This subpart will examine the reception of the equity of the statute (or the lack thereof) in three periods. First, it will argue that the ratification debates do not establish an understanding that the equity of the statute would form an element of the judicial power. If anything, they suggest that both Anti-Federalists and Federalists believed that the equity of the statute would be unattractive to the ratifiers. Second, it will examine federal judicial practice through the first half of the nineteenth century. In particular, it will emphasize that federal courts sometimes applied the equity of the statute as late as the mid-nineteenth century, but that the Supreme Court had taken a decisive turn toward the faithful agent theory as early as the Marshall Court. Third, it will briefly examine subsequent developments, concluding that the equity of the statute did not withstand the test of time.
1. The Ratification Debates and the Equity of the Statute. The ratifica-
tion debates provide a good starting point for consideration of foundingera attitudes about the equity of the statute. In contrast with the records of the Philadelphia Convention, portions of these debates speak directly to the question of statutory interpretation. Because the ratification of the Constitution was of course the ultimate act that gave it legal force, evidence of a reliable and consistent understanding of the judicial power in those debates might shed important light on the original understanding. Those debates, however, only episodically address the precise question of statutory interpretation. And it was the Constitution's opponents, perhaps for strategic reasons, who made the clearest argument that the equity of the statute would apply. The overall discussion of statutory inter304. Perhaps the most famous example is the so-called "decision of 1789," which involved the establishment of the Department of Foreign Affairs. In proceedings that spanned many days, the First Congress exhaustively debated the textual, structural, and historical arguments relating to the President's removal power. See Myers v. United States, 272 U.S. 52, 112-26 (1926) (describing the proceedings and discussing the removal power debates in the First Congress). In that context, there was no question that Congress's deliberations reflected explicit consideration of the implications of the constitutional structure. See id. at 114. HeinOnline -- 101 Colum. L. Rev. 79 2001
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pretation, moreover, is ultimately mixed at best. Hence, although some modern proponents of the equity of the statute have invoked the ratification debates in support of that doctrine, 30 5 their evidence does not overcome the clear inferences to the contrary from the constitutional structure as a whole. An important strand of the ratification debates supports the equity of the statute as a part of the judicial power. Specifically, in opposing ratification, a number of Anti-Federalist writers expressed the clear expectation that equitable interpretation would prevail in the federal courts. In particular, several argued forcefully that the federal courts would interpret the Constitution equitably, and that this practice would erode the principle of a government of limited and enumerated powers.30 6 The writings of Brutus provide the most cogent example of this Anti-Federalist claim. Although some Anti-Federalists argued that federal courts would exercise broad discretion by virtue of Article III's apparent merger of law
and equity,3 0 7 Brutus correctly recognized that the doctrine of equitable
interpretation, if applicable, would sweep more broadly than the jurisdiction of the chancellor. Reasoning that Blackstone's theory of equitable interpretation would inform "the authority and business of the courts of law," Brutus argued that the federal courts "will not confine themselves to any fixed or established rules, but will determine, according to what ap0 pears to them, the reason and spirit of the constitution." 3 8 As Brutus further wrote: "The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity.... By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter."30 9 Although disapproving of this practice as a potential means to subvert the powers of the several states, 310 for present purposes Brutus's essay is more important because it explicitly assumed that the federal courts would enjoy the same broad interpretive powers that English judges had enjoyed. A number of other Anti-Federalists started from precisely the same assumption.31
305. See Eskridge, Unknown Ideal, supra note 33, at 1529-30. 306. E.g., Brutus, Essay XI (Jan. 31, 1788), reprinted in The Anti-Federalist 164-65 (HerbertJ. Storing ed., 1985). 1 307. See U.S. Const. art. III, 2, cl. ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority....."); see also Letter from the Federal Farmer to The Republican III (Nov. 8, 1787), in 1 The Debate on the Constitution 259, 273 (Bernard Bailyn ed., 1993) (emphasizing that "if the law restrain[s the federal judge], he only is to step into his shoes of equity, and give what judgment his reason or opinion may dictate"). 308. Brutus, supra note 306, at 165. 309. Id. at 164. 310. Id. at 165. 311. See, e.g., The Federal Farmer XV (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 322 (Herbert J. Storing ed., 1981) (suggesting that in matters of constitutional interpretation, "the judges may decide... on principles of equity as well as HeinOnline -- 101 Colum. L. Rev. 80 2001
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In assessing the implications of this evidence, one must keep in sight that the Anti-Federalists made these points in opposition to the Constitution's ratification; their invocation of the equity of the statute was calculated to sow apprehension about what the Constitution might mean. 312 And, as is true of both sides in the ratification debate, it is at least plausible that the Anti-Federalists shaded or exaggerated their views for reasons of political strategy. 31 3 Thus, to understand the implications of their statements about interpretation, it is also necessary to consider the Federalist response. Subject to an important qualification (to be discussed shortly), if the Federalists adopted a tone of confession and avoidance on the question of equitable interpretation, that posture would suggest that both sides of the ratification debate started from common assumptions on the subject. If, however, the Federalists disputed the Anti-Federalist position on equitable interpretation, one would be hard pressed to conclude that the ratification debates reflected a consensus in favor of the equity of the statute, contrary to the apparent import of the constitutional structure. In a series of writings, William Eskridge, the strongest modern proponent of equitable interpretation, has argued that the Federalists were largely in sync with the Anti-Federalists on the equity of the statute. Focusing primarily on The FederalistNo. 78, Eskridge argues that Hamilton in fact "went beyond Blackstone in arguing that courts should not only interpret statutes equitably, but might also respond to 'unjust and partial laws' by 'mitigating the severity and confining the operation of such law[s].' , 314 Although Hamilton believed that judicial discretion must be constrained,
law"); Letter from Samuel Osgood to Samuel Adams (Jan. 5, 1788), in 1 The Debate on the Constitution, supra note 307, at 704, 706 (arguing that the federal courts "have Power, not confining themselves to the Letter of the general or State Constitutions, to consider & determine upon it, in Equity" and that "the Judges of the supreme Judicial Court... may by a Number of legal Decisions, make what Constitution they Please for the united States"). 312. See William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 Geo. Wash. L. Rev. 1301, 1318 (1998) [hereinafter Eskridge, Supreme Court and The Federalist] ("When the debate over adoption or ratification is sharply divided, opponents also make statements attacking the proposed provision. Their strategic statements are worth little in understanding the provision if it is adopted, because their incentives are to exaggerate and distort the meaning and effect of the provision."). 313. As Alpheus Thomas Mason once wrote: To quiet the fears of opponents, advocates of ratification said things which, in later years, proved embarrassing to themselves and misleading to scholars. On the other hand, certain of the Constitution's enemies turned alarmist, portraying the proposed national charter in the most extreme terms. This strategy obscured positions on all sides and made the Constitution's meaning less than crystal clear. Alpheus T. Mason, The Federalist-A Split Personality, in Origins of American Political Thought 163, 168 (John P. Roche ed., 1967). 314. Eskridge, Dynamic Interpretation II, supra note 87, at 117 (footnotes omitted) (quoting The Federalist No. 78, supra note 9, at 470 (Alexander Hamilton)); see also id. ("Whereas Blackstone was willing to interpret statutes beyond original iegislative
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his argument was that statutory interpreters are constrained not by the "will of the Legislature" (which Hamilton never mentions) but instead by "strict rules and precedents"; by the purpose of an independent judiciary "to secure a steady, upright, and impartial administration of the laws"; and by the institutional weakness of the judiciary, whose judgments can be over3 15 ridden by the two more powerful branches. Eskridge deploys this evidence to show that crucial spokesmen for both sides expected statutory interpretation to be more pragmatic than formal, 3 16 thereby providing important support for the equity of the statute. I believe that, properly understood, The Federalistin fact contradicts the assumptions underlying the equity of the statute. To be sure, Hamilton did argue that the life tenure and salary protection afforded by Article III would give federal judges the independence to "mitigat[e] the severity and confin[e] the operation of [unjust and partial] laws."31 7 In contrast with Brutus, however, Hamilton never mentioned the equity of the statute, a peculiar omission if he meant to endorse a well-known interpretive doctrine. Indeed, as the full context of The FederalistNo. 78 and other writings suggest, Hamilton was more likely referring to the power of judges to mitigate the harshness and severity of laws when ambiguity left room for the exercise of judicial discretion. Read as a whole, Hamilton's remarks cut sharply against the judicial discretion implicit in the equity of the statute. 31 8 In defending what was
to become Marbury-style judicial review, for example, The FederalistNo. 78
made clear that judges were expected to implement the will or, as Hamilton put it, the "pleasure" of the legislature. Hamilton thus denied that judicial review was problematic because judges might use it as pretext to "substitute their own pleasure to the constitutional intentions of the legislature. '3 19 He did not defend against that charge by arguing that judges could properly exercise such discretionary authority, but rather emphasized that the concern was not unique to constitutional cases. Indeed, the same concern might be raised with respect to ordinary statutory interpretation cases. Hamilton explained that in such cases "[t] he courts must declare the sense of the law; and if they should be disposed to exercise WILL instead ofJUDGMENT, the consequence would equally be the subexpectations, Hamilton was willing to interpret them against those expectations. His
reasoning was that interpretive curtailment of unjust laws would force the legislature to 'qualify' the severity of statutes it enacted, knowing them to be subject to further review."). 315. Id. at 118. 316. Eskridge, Unknown Ideal, supra note 33, at 1529 ("The framers of the
Constitution were at least as pragmatic as Blackstone in their approach to statutes ....
317. The Federalist No. 78, supra note 9, at 470 (Alexander Hamilton). 318. For an excellent discussion of the Anti-Federalist concerns about equity in general and the Federalist response, see John Choon Yoo, Who Measures the Chancellor's Foot? The Inherent Remedial Authority of the Federal Courts, 84 Cal. L. Rev. 1121, 1155-61 (1996). 319. The Federalist No. 78, supra note 9, at 468-69 (Alexander Hamilton).
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stitution of their pleasure to that of the legislative body."320 The tenor of these remarks makes clear that Hamilton disapproved of such substitutions of judicial for legislative discretion. And any doubt on that score is clarified by his further admonition that " [t] o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them."32 1 Although Hamilton did not tie that observation directly to ajudicial duty to respect the legislative will, 32 2 his unmistakable suspicion ofjudicial discretion is sharply at odds 323 with the premises of the equity of the statute. In The FederalistNo. 81, moreover, Hamilton explicitly defended the separation of powers against the charge that an independent judiciary would encroach upon the legislative power by disregarding the legislative will: It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority which has been upon many occasions reiterated is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department.3 24 Thus, far from endorsing the equity of the statute, Hamilton evidently believed that the federal judiciary's duty was to respect the "will of the legislature," and that extensive deviations from that duty would amount to ajudicial usurpation of legislative power sufficient to warrant impeach320. Id. at 469. Professor Eskridge emphasizes that this warning "was sounded in connection with Hamilton's discussion of judicial review, not of statutory interpretation." Eskridge, Dynamic Interpretation II, supra note 87, at 117-18. That contention, however, does not sufficiently acknowledge that Hamilton, in fact, treated the problem of judicial discretion as endemic to both judicial review and statutory interpretation. He apparently found the substitution of the judge's will for the pleasure of the legislature to be equally problematic in both contexts. 321. The Federalist No. 78, supra note 9, at 471 (Alexander Hamilton). 322. Eskridge, Dynamic Interpretation II, supra note 87, at 118. 323. As Blackstone explained, the equity of the statute depends "upon the particular circumstances of each individual case, [and] there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law." 1 Blackstone, supra note 9, at *62. 324. The Federalist No. 81, supra note 9, at 484-85 (Alexander Hamilton) (emphasis added).
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ment and removal.3 2 5 In short, contrary to Eskridge's argument, Hamilton's writings support the faithful agent theory, rather than the equity of the statute. Ultimately, then, the ratification debates as a whole do not speak decisively to the equity of the statute. Discussion of the rules of interpretation to be applied in federal court was uneven. And modern constitutional interpreters must exercise caution whenever they rely on particular statements or exchanges in the ratification debates. 326 The debates took place at different times and in many states; accordingly, one cannot ascribe determinative force to the expressions found in any given debate. There is no basis to infer that a constitutionally sufficient number of ratifiers read or assented to the views recorded in specific pamphlets, published exchanges, or ratifying conventions, however important they might appear in retrospect. 32 7 Nor are particular statements or exchanges necessarily reliable evidence of the average ratifier's understanding of the Constitution, since advocates in the decidedly political fight over ratification were prone to exaggeration on both sides. 328 Hence, as I have argued elsewhere, the debates are useful only to the extent that they offer a persuasive contemporaneous analysis of the Constitution's meaning, considered in light of the text, structure, and historical context of that document. 329 Measured against that criterion, one must rate the ratification debates as inconclusive. Although the Anti-Federalists' assumptions accurately reflected the English background against which the Constitution was adopted, the Federalists' rejoinders more accurately reflected the
325. John Yoo has argued that Hamilton endorsed the use of canons of construction as a means to bring reason to the process of statutory interpretation. John Choon Yoo, Note, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 Yale L.J. 1607, 1612 (1992) [hereinafter Yoo, Marshall's Plan]. Upon preliminary examination, Hamilton's position on the canons might be viewed as being in tension with the faithful agent theory. With respect to at least one canon-when two statutes conflict, the latter controls-Hamilton explained that the canon was "not derived from any positive law but from the nature and reason of the thing." The Federalist No. 78, supra note 9, at 468 (Alexander Hamilton). Indeed, it was "not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law." Id. More fully considered, however, these observations do not negate Hamilton's subscription to the faithful agent theory. Rather, Hamilton seems to have contemplated two distinct functions for the canons. First, in a case where the legislature has not conveyed clear instructions (e.g., conflicting statutes), the courts would be free to decide according to "the nature and reason of the thing." Id. at 468. Second, the courts would apply the canons as common sense rules to decode language, not as substitutes for that task. Thus, as Hamilton emphasized, "the natural and obvious sense of [a law's] provisions, apart from any technical rules, is the true criterion of construction." The Federalist No. 83, supra note 9, at 497 (Alexander Hamilton). 326. Manning, Constitutional Adjudication, supra note 234, at 1339. 327. See Eskridge, Supreme Court and The Federalist, supra note 312, at 1308; Manning, Constitutional Adjudication, supra note 234, at 1340. 328. See supra note 313 and accompanying text. 329. See Manning, Constitutional Adjudication, supra note 234, at 1360; see also supra note 234.
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Constitution's careful separation of legislative from judicial power and the strong intellectual tradition that this arrangement reflected. Neither side's analysis, therefore, adds much independent value in resolving the apparent tension between the English judicial background and the innovations in the American constitutional structure. Indeed, if the ratification debates show anything at all, the dominant rhetorical strategy of both sides offers mild support for the premise that the combatants believed that the equity of the statute would likely prove to be unacceptable to the ratifiers. That is, the debates may provide some insight into which arguments were regarded as persuasive to that important audience. 330 In this respect, it is significant that the Anti-Federalists invoked the equity of the statute as part of a parade of horribles calculated to defeat the Constitution. The Federalists, in turn, principally invoked something like the faithful agent theory as a means of securing its adoption. 331 Accordingly, among those who spoke to the issue, the overall tenor of the debate reflects, if anything, suspicion, rather than approval, of the equity of the statute doctrine.
2. The Early FederalJudicialPractice.Turning to the post-ratification
evidence, proponents of the equity of the statute further emphasize that American judicial decisions invoked the equity of the statute well into the nineteenth century. 332 This evidence of early practice requires serious attention. Although post-ratification applications of the Constitution of course could not have informed the ratifiers' understanding of the document, the Supreme Court properly invokes early practical expositions because early Americans "must have had a keen appreciation of the influences which had shaped the Constitution and the restrictions which it embodied, since all questions which related to the Constitution and its adoption must have been, at that early date, vividly impressed on their minds. '33 3 Hence, if the equity of the statute had taken hold as a settled
330. Cf. Eskridge, Supreme Court and The Federalist, supra note 312, at 1318 (noting that supporters were likely to frame their arguments to win support for the document). 331. Of course one can also find the occasional Federalist endorsement of the equity of the statute. See, e.g., Refutation of the "Federal Farmer": Timothy Pickering to Charles Tillinghast (Dec. 24, 1787), in 1 The Debate on the Constitution, supra note 307, at 289, 297 (noting that courts of law, like courts of equity, determine meaning "according to the spirit of the rule, and not according to the strictness of the letter," and arguing that "our ideas of a court of equity are derived from the English Jurisprudence"). This merely confirms that those who participated in the ratification debates were not of one mind on the subject. 332. E.g., Sedgwick, supra note 124, at 311-15 (describing several nineteenth-century cases in which the equity of the statute doctrine was applied); de Sloovire, supra note 124, at 597 ("In many early American cases the doctrine of equitable interpretation was adopted."); Landis, Sources of Law, supra note 87, at 218 ("[F]or a time, the doctrine of the equity of the statute held considerable sway in American courts."). 333. Knowlton v. Moore, 178 U.S. 41, 56 (1900). The Court most often relies on contemporaneous practical interpretations rendered by Congress in the course of legislation. E.g., Myers v. United States, 272 U.S. 52, 174-76 (1926) (invoking early practical constructions of the Constitution); Wisconsin v. Pelican Ins. Co., 127 U.S. 265,
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rule of interpretation in the early federal courts, that fact would provide potentially valuable evidence that founding-era Americans viewed the 33 4 doctrine as an appropriate element of the judicial power. The history, however, does not support this conclusion. Although the federal courts at times invoked the equity of the statute until well into the nineteenth century, the law as early as the Marshall Court began to shift to the faithful agent theory as the dominant constitutional foundation of statutory interpretation. Much of the early case law thus built on the explicit assumption that, in matters of statutory interpretation, federal judges had an affirmative duty to decipher and enforce, rather than improve upon, statutory commands-provided that they were clear in context. The equity of the statute simply never emerged as anything close to the consensus understanding of the federal judicial power. Although a comprehensive history of early federal interpretive practice would require its own paper, 335 a sample of the early federal case law 3 36 suffices to illustrate the tenor of the period.
297 (1888) (same); The Laura, 114 U.S. 411, 416 (1885) (same); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821) (same); Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (same). 334. As Kent Greenawalt has observed, it is possible to derive evidence about the meaning of a text by consulting the interpretations of those who have the familiarity with the relevant context and linguistic conventions. Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1451 (1997). 335. For an excellent discussion of early interpretive theory that does not focus primarily on the federal courts, see generally William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, 6 Cardozo L. Rev. 799 (1985). 336. Modern proponents of the equity of the statute often invoke state court decisions as the basis for understanding federal judicial power. See Eskridge, Unknown Ideal, supra note 33, at 1524 ("The statutory decisions of state courts are relevant to figuring out what the 'judicial Power' meant to an American audience in 1789."); Landis, Sources of Law, supra note 87, at 235 n.12 (citing early state and federal decisions relying on the equity of the statute). Although early state practice is beyond the scope of this Article, several considerations cast doubt on the relevance of such practice to federal constitutional attitudes. First, the early states contained thirteen independent judicial systems. To rely on state practice as a model for general American views on interpretation, one would first have to establish uniformity in state interpretive practice. But cf. Shelby v. Guy, 24 U.S. (11 Wheat.) 361, 367 (1826) (noting the "inconsistencies" that arise "where states adopt the same statutes, and their courts differ in the [method of] construction"). Second, to invoke a given state's practice, it would be necessary to understand the jurisprudential and constitutional context in which that practice arose. At a minimum, if interpretive rules derive from the constitutional relationship between the legislature and the judiciary, then a given state court's approach might inform federal practice only if that state's constitution shared the salient structural features of the U.S. Constitution. As discussed, however, "the judicial Power of the United States" was designed, in large part, to address perceived inadequacies in various state constitutional structures and practices, including state legislative domination of and interference with state judiciaries. See supra text accompanying notes 255-261; see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219-25 (1995) (describing historical context of "the judicial Power"). Accordingly, it is not safe to assume that early state institutions were pertinent to the newly created federal structure. Cf. Calder v. Bull, 3 U.S. (3 Dall.) 386, 398 (1798) (Iredell,J.) (analogizing the Connecticut legislature's apparent exercise of judicial powers to Parliament's judicial HeinOnline -- 101 Colum. L. Rev. 86 2001
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At the outset, it must be noted that the pre-Marshall Court jurisprudence is largely inconclusive. 337 Statutory decisions, particularly involving federal statutes, were rare, and the interpretive reasoning of the seriatim opinions is typically sparse. On occasion, early cases invoked the
equity of the statute-or at least interpretive principles that seemed to reflect that doctrine's assumptions about judicial power. 338 Other decisions appear to embrace the constitutional premises implicit in the faith3 39 ful agent theory, with some even appearing to endorse textualism.
authority). Third, and most importantly, to the extent that state court practice relied on the equity of the statute, such practice conflicted with the express constitutional assumptions and interpretive practices that ultimately prevailed in the federal courts in the early republic. See infra text accompanying notes 342-392. 337. See, e.g., Popkin, Statutes in Court, supra note 140, at 52 (noting tensions over equitable interpretation in early federal decisions); Yoo, Marshall's Plan, supra note 325, at 1613-15 (describing "confusion" in the Court's statutory interpretation opinions during the pre-Marshall era). 338. Although early federal decisions typically did not invoke the equity of the statute by name in cases involving federal statutes, federal judicial opinions seemed at times to endorse that doctrine's premise of strong judicial power. E.g., Wiscart v. D'Auchy, 3 U.S. (3 Dali.) 321, 328-29 (1796) (Ellsworth, C.J.): The law may, indeed, be improper and inconvenient; but it is of more importance, for a judicial determination, to ascertain what the law is, than to speculate upon what it ought to be. If, however, the construction, that a statement of facts by the circuit court is conclusive, would amount to a denial of justice, would be oppressively injurious to individuals, or would be productive of any general mischief, I should then be disposed to resort to any other rational exposition of the law, which would not be attended with these deprecated consequences. See also United States v. Stewart, 27 F. Cas. 1338, 1339 (C.C.D. Pa. 1795) (No. 16,401) (recognizing that, although federal statute requires only three days' notice of witness list in criminal case, "a reasonable time shall be allowed, after a list of the names of the witnesses is furnished to the prisoners, for the purpose of bringing testimony from the counties in which those witnesses live"); cf. Calder, 3 U.S. (3 Dall.) at 388 (Chase, J.) ("It is against all reason and justice, for people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it."). In addition, in his Lectures on Law, Justice Wilson explicitly endorsed the equity of the statute, albeit in qualified terms: In making laws, it is impossible to specify or foresee every case: it is, therefore, necessary, that, in interpreting them, those cases should be excepted, which the legislator himself, had he foreseen them, would have specified and excepted. Such interpretation, however, ought to be made with the greatest circumspection. By indulging it rashly, the judges would become the arbiters, instead of the ministers of the laws. It is not to be used, unless where the strongest and most convincing reasons appear for using it. A strong reason for using it is drawn from the spirit of the law, or the motive which prevailed on the legislature to make it. When equity is taken in this sense, every court of law is a court of equity. 2 The Works of James Wilson, supra note 290, at 478. 339. See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 46 (1800) (Paterson,J.) ("I shall select one paragraph, namely, that which refers to prizes taken by our public vessels, anterior to the passing of the latter act. The word prizes in this section can apply to the French, and the French only. This is decisive on the subject of legislative intention."); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 239-40 (1796) (Chase, J.) ("If the words [of a treaty] express the meaning of the parties plainly, distinctly and perfectly, there ought to be no other means of interpretation; but if the words are obscure, or ambiguous, or imperfect, recourse must HeinOnline -- 101 Colum. L. Rev. 87 2001
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Even if the early decisions evince uncertainty, one should expect as much at the beginning of the republic. In his defense of the Constitution during the ratification debates, Madison correctly recognized that, like all legal texts, the Constitution would produce ambiguities, and that its precise import would come to be "liquidated" only through practice. 340 Especially with an open-ended term such as "the judicial Power," whose precise content derives from diverse structural and historical factors, one
be had to other means of interpretation ... . Ketland v. Cassius, 14 F. Cas. 431, 432 "); (C.C.D. Pa. 1796) (No. 7,743) (Peters, J.) ("[T]he court ought to be clearly of opinion, that the constitution and the law intended to give it Uurisdiction]; but here, the words will hardly admit a doubt upon the intention of the legislature... and, therefore, we can have no pretence whatever to sustain the present information."); id. at 433 (Wilson, J.) ("The exclusion is expressed in strong and unqualified terms [and cannot] by any reasonable interpretation[ ] be restricted to... the state courts. Wherever... a qualified exclusion is intended, the expression of the legislature corresponds with that intention .... [N]o contradiction exists, to call for any strained exposition of the law."); United States v. Robins, 27 F. Cas. 825, 833 (D.C.D. S.C. 1795) (No. 16,175) (Bee, J.) ("[T]hat requisition having been made by the British consul .. . in virtue of the 27th article of the treaty of amity and commerce between the United States and Great Britain, I am bound by the express words of that clause of the treaty, to deliver [Robins] up to justice."). While riding circuit in 1800, Justice Chase expressed the most explicit reservations about the relevance of English methods of construction to American judges operating in a quite different system of government: By the rules, which are laid down in England for the construction of statutes, and the latitude which has been indulged in their application, the British Judges have assumed a legislative power; and on the pretence of judicial exposition, have, in fact, made a great portion of the statute law of the kingdom. Of those rules of construction, none can be more dangerous, than that, which distinguishing between the intent, and the words, of the legislature, declares, that a case not within the meaning of a statute, according to the opinion of the Judges, shall not be embraced in the operation of the statute, although it is clearly within the words: or, vice versa, that a case within the meaning, though not within the words, shall be embraced. For my part, however, sitting in an American Court, I shall always deem it a duty to conform to the expressions of the legislature, to the letter of the statute, when free from ambiguity and doubt; without indulging a speculation, either upon the impolicy, or the hardship, of the law. Priestman v. United States, 4 U.S. (4 Dall.) 28, 30 n.1 (1800) (Chase, J.). 340. Specifically, in defending the Constitution against charges of indeterminacy, Madison confessed that "[a]ll new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." The Federalist No. 37, supra note 9, at 229 (James Madison); see also Letter from James Madison to Thomas Grimke (Jan. 15, 1828), in 3 Letters and Other Writings of James Madison 611, 611 (Philadelphia 1865) [hereinafter Madison's Letters] (noting that "new terms" are "always liable . . .till made technical by practice, to disordant interpretations"); Letter from James Madison to Judge Spencer Roane (Sept. 2, 1819), in 3 Madison's Letters, supra, at 143, 143 (noting that a constitution's meaning, "so far as it depends on judicial interpretation," will be settled by "a course of particular decisions"); id. at 145 ("It . . .was foreseen at the birth of the Constitution . . .that it might require a regular course of practice to liquidate and settle the meaning of some of [its terms]."). HeinOnline -- 101 Colum. L. Rev. 88 2001
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could hardly expect a decisive resolution of its meaning overnight. 34 1 And one might expect the legal culture to assimilate the lessons of our constitutional structure especially slowly in the realm of interpretive rules. In a new system of government with a largely uncharted legal tradition,judges would naturally seek interpretive principles in the most familiar sources of authority, namely English treatises and case law. Hence, largely unelaborated invocations of the equity of the statute in the earliest days of the republic may reflect a predictable reliance on English sources in a new legal system, rather than an affirmative judgment that the federal judges, in our distinctive constitutional system, inherited the same broad lawmaking powers that their English forebears had enjoyed. During the Marshall Court, a more definite interpretive approach 34 2 began to emerge in relation to the rules of statutory interpretation.
341. The federal common law of crimes and the issuance of advisory opinions offer two clear examples of this phenomenon. First, in the 1790s, when lawyers schooled in the English system were still sorting out the meaning of "the judicial Power of the United States," many of the circuit courts simply assumed that they had common law powers to fill the void left by a sparse federal criminal code. See, e.g., Stewart Jay, Origins of Federal Common Law: Part One, U. Pa. L. Rev. 1003, 1016-17 (1985) (discussing early federal common law); Gary D. Rowe, Note, The Sound of Silence: United States v. Hudson & Goodwin, the Jeffersonian Ascendancy, and the Abolition of Federal Common Law Crimes, 101 Yale L.J. 919, 920 (1992) (same). Such prosecutions, however, became the subject of a protracted public debate concerning their legitimacy; Jeffersonians strongly opposed the idea of federal common law crimes, and Federalists strongly favored them. See Jay, supra, at 1077-93; Rowe, supra, at 936-37. With Jefferson's election in 1800, federal common law prosecutions virtually ceased. See Kathryn Preyer, Jurisdiction to Punish: Federal Authority, Federalism and the Common Law of Crimes in the Early Republic, 4 L. & Hist. Rev. 223, 237-38 (1986). And when the question finally reached the Supreme Court in 1812 in United States v. Hudson & Goodwin, the Court firmly rejected the federal common law of crimes. 11 U.S. (7 Cranch) 32, 33-34 (1812); see also United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 416-17 (1816) (adhering to Hudson & Goodwin). Although Hudson & Goodwin of course does not resolve all potential issues relating to federal common lawmaking power, it does show that the Court in the early period flatly denied the existence of such power in the only thoroughly contested public controversy on the subject, the federal common law of crimes. Second, early federal judges frequently issued advisory opinions. See William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Olver Ellsworth 178-79 (1995). In 1793, however, the Justices of the Supreme Court declined to give advice requested by Secretary of State Jefferson on a number of legal questions concerning the hostilities between England and France. See Letter from the Justices to George Washington (Aug. 8, 1793), in Richard H. Fallon, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 92 (4th ed. 1996) (relying on the separation of powers). Although the question did not come to rest immediately, it later became settled that advisory opinions do not fall within federal judges' limited Article III authority to decide "cases" or "controversies." See David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 12-13 (1985). Because English judges had themselves issued advisory opinions, the ultimate rejection of advisory opinions apparently rested on the policies implicit in Article III, not on claims having a historical pedigree. See Flast v. Cohen, 392 U.S. 83, 96 (1968); Felix Frankfurter, Advisory Opinions, 1 Encyclopedia Soc. Sci. 475, 476 (1937). 342. Beyond its statutory interpretation decisions, the Marshall Court's recognition of judicial review tangentially supports the rejection of the equity of the statute. Some early HeinOnline -- 101 Colum. L. Rev. 89 2001
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Although the opinions of that period are not all of a piece, the Court's dominant and, more importantly, explicit interpretive philosophy assumed that federal courts must scrupulously respect the distinctive constitutional roles of Congress (lawmaking) and the federal judiciary (law application) in the realm of statutes. 343 Marshall understood fully the '344 distinction between the "will of the judge" and the "will of the law."
state courts had provoked controversy by displacing or narrowing statutes that otherwise were thought to contradict common right or reason. See, e.g., Popkin, Statutes in Court, supra note 140, at 46-48 (discussing cases); Wood, Creation, supra note 245, at 453-63 (same); see also Argument andJudgment of the Mayor's Court of the City of New York in a Cause Between Elizabeth Rutgers and Joshua Washington 41 (Samuel Loudon, New York, N.Y. 1784): [W]hen a law is expressed in general words, and some collateral matter, which happens to arise from those general words is unreasonable, there the Judges are in decency to conclude, that the consequences were not foreseen by the Legislature; and therefor they are at liberty to expound the statute by equity, and only quoad hoc to disregard it. The Marshall Court, however, explicitly tied judicial review to the concept of a written constitution as higher law. As Marshall explained for the Court in Marbury v. Madison, 5 U.S. (3 Cranch) 137, 176-77 (1803): The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. In other words, the Court did not regard judicial review as authority to displace a legislative decision thought to be unreasonable, but merely enforced higher law adopted by the people and reduced to writing. See, e.g., Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law 63-64 (1996) (discussing origins of Marshall's theory of judicial review); Wood, Creation, supra note 245, at 462-63 (discussing Marbury's theoretical antecedents); see also The Federalist No. 78, supra note 9, at 467 (Alexander Hamilton) ("A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."). For further discussion of the relationship between judicial review and the equity of the statute, see infra Part T.D. 343. Because Marshall tended to express similar views of judicial power in cases of constitutional and statutory interpretation, the present analysis will draw on both types of decisions to the extent that they explicate the relevant framework. The question whether the rules of construction were regarded as identical in both contexts is beyond the scope of this Article. Cf. H. Jefferson Powell, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885, 905 (1985) (suggesting that the Founders expected the Constitution to be construed according to the same rules that governed the interpretation of statutes). 344. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 866 (1824) (Marshall, C.J.). Indeed, Marshall "initiated the modern Marbuiy constitution by textualizing and legalizing constitutional principle." Sylvia Snowiss, Text and Principle in John Marshall's Constitutional Law: The Cases of Marbury and McCulloch, 33 John Marshall L. Rev. 973, 976 (2000).
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The Marshall Court frequently emphasized that the federal judge's constitutional duty was to adhere to the legislature's intent, which was to be
gleaned primarily (though not exclusively) from the words of the statute.
Hence, as the Court made clear, "it has truly been stated to be the duty of
the court to effect the intention of the legislature."3 45 And recognizing that "[t]he object of language is to communicate the intention of him who speaks,"3 4 6 Marshall further emphasized that the legislative intention "is to be searched for in the words which the legislature has employed to convey it."3 4 7 This duty, moreover, was most pressing when a statute's words spoke clearly to the precise question at issue. Accordingly, "when the legislature manifests [a] clear understanding of its own intention, 348
which intention consists with its words, courts are bound by it."
345. The Schooner Paulina's Cargo v. United States, 11 U.S. (7 Cranch) 52, 60 (1812) (Marshall, C.J.); see also Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 21 (1829) (Story, J.) ("[T]he will of the legislature must still be obeyed. It cannot and ought not to be disregarded, where it plainly applies to the case."); United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (Marshall, C.J.) ("Where the intent is plain, nothing is left to construction."); Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52 (1804) (Marshall, CJ.) (concluding that the object of interpretation is to "discover[ ] the mind of the legislature"). 346. Marshall's "A Friend of the Constitution" Essays, Alexandria Gazette (June 30, 1819-July 15, 1819), reprinted in John Marshall's Defense of McCulloch v. Maryland 155, 168 (Gerald Gunther ed., 1969) [hereinafter Marshall's Defense]. 347. The Schooner Paulina's Cargo, 11 U.S. (7 Cranch) at 60. 348. United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (Marshall, C.J.); see also Conard v. Atlantic Ins. Co., 26 U.S. (1 Pet.) 386, 439 (1828) (Story, J.) ("The language employed is that which naturally would be employed to express such an intent; and it must be strained from its ordinary import, to speak any other."); Osborn, 22 U.S. (9 Wheat.) at 817 ("These words seem to the Court to admit of but one interpretation. They cannot be made plainer by explanation."); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820) (Marshall, C.J.) ("Where there is no ambiguity in the words, there is no room for construction."); Evans v. Jordan, 13 U.S. (9 Cranch) 199, 202 (1815) (Washington, J.) ("The language of this last proviso is so precise, and so entirely free from all ambiguity, that it is difficult for any course of reasoning to shed light upon its meaning."); United States v. Gordon, 25 F. Cas. 1368, 1369 (C.C.D. Va. 1811) (No. 15,232) (Marshall, Circuit Justice) ("The estimate of the collector, it is said, must be conclusive. Had the law said so, the court could only have obeyed the law. But this is not its language."). This is not to say, however, that the Marshall Court was literal in its approach to statutes. Marshall recognized that statutes might contain terms of art, whose precise meaning derived from the legal tradition it reflected. See, e.g., Palmer, 16 U.S. (3 Wheat.) at 630 ("Of the meaning of the term robbery, as used in the statute, we think no doubt can be entertained. It must be understood in the sense in which it is recognized and defined at common law."); United States v. Burr, 25 F. Cas. 55, 159 (C.C.D. Va. 1807) (No. 14,693) (Marshall, Circuit Justice) (defining the constitutional definition of treason in light of the English common law understanding of the operative terms of art). Similarly, the Marshall Court recognized its duty to read legal terms "according to the common understanding of mankind" and to take them "in their popular and received sense." Wiltberger, 18 U.S. (5 Wheat.) at 94. This approach incorporated the insight that speakers sometimes use language colloquially. Perhaps most famously, Marshall relied on the colloquial meaning of "necessary" to show that the Necessary and Proper Clause, U.S. Const. art. I, 8, cl.18, did not confine Congress to measures that were strictly necessary to the exercise of its powers. See HeinOnline -- 101 Colum. L. Rev. 91 2001
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Contrary to the premises of the equity of the statute, the Court also expressly disclaimed authority to adjust an otherwise clear statute in order to avoid a perceived hardship or injustice or supply an omission thought to be warranted by the statute's overall policy. Because such judgments belonged principally to the legislative department, the Court did not consider itself free to substitute its wisdom for the legislature's clear expressions of intent. As Marshall once explained while riding circuit: That an act ought to be construed as to avoid gross injustice, if such construction be compatible with the words of the law, will not be controverted; but this principle is never to be carried so far as to thwart that scheme of policy which the legislature has the power to adopt. To that department is confided, without revision, the power of deciding on the justice as well as wisdom of measures relative to subjects on which they have the constitutional power to act. Wherever, then, their language admits of no doubt, their plain and obvious intent must prevail.3 49 And this attitude toward the allocation of constitutional powers reflected the Court's attitude more generally. Although arguments founded upon "hardship" were "entitled to great weight" when the words of a statute were "obscure and open to construction .... considerations of this nature [could] never sanction a construction at variance with the manifest meanM'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413-14 (1817) (Marshall, CJ.): If reference be had to [the term's] use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. Almost all composition contains words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. 349. Evans v. Jordan, 8 F. Cas. 872, 873 (C.C.D. Va. 1813) (No. 4,564) (Marshall, Circuit Justice), affd 13 U.S. (9 Cranch) 199 (1815); see also The Adventure, 1 F. Cas. 202, 204 (C.C.D. Va. 1812) (No. 93) (Marshall, Circuit Justice): [Tihe wisdom or folly of any particular system, is for the consideration of the legislature, not of the court; and when the policy of the law is mentioned by a judge, I always understand him to use the term in reference to the object of the legislature, and to the means by which that object is to be effected, as disclosed in the words that they have employed. In Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 664 (1834) (M'Lean,J.), the Court was asked to excuse two statutory conditions for perfecting a copyright-namely, placing a public notice in a newspaper within six months of a book's publication and depositing a copy of the work with the Secretary of State. In response, the Court explained: [W]e are told that [these conditions] are unimportant acts. If they are indeed wholly unimportant, congress acted unwisely in requiring them to be done. But whether they are important or not, is not for the court to determine, but the legislature; and in what light they were considered by the legislature, we can learn only by their official acts.
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ing of the legislature, expressed in plain and unambiguous language." 350 By the same token, federal judges were not to assume the legislative function of adjusting an explicit text to address more precisely the mischief at which the statute apparently was directed. 351 Rather, "it is the province of the court, to apply the rule to the case thus explicitly described-not to some other case which judges may conjecture to be equally dangerous." 352 Hence, if a clear statute was ineffectual in remedying the mis350. Evans, 13 U.S. (9 Cranch) at 203; see also Pennock, 27 U.S. (2 Pet.) at 21 ("We are not at liberty to reject words which are sensible in the place where they occur, merely because they may be thought, in some cases, to import a hardship, or tie up beneficial rights within very close limits."); The Schooner Adeline, 13 U.S. (9 Cranch) 244, 287 (1815) (Story, J.) ("The statute is expressed in clear and unambiguous terms.... We cannot interpose a limitation or qualification upon the terms which the legislature has not itself imposed; public policy or principle [considerations] must be addressed with effect to another tribunal."). As Justice Story explained in his opinion for the Court in The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821): Neither can this Court supply a casus omissus in a treaty, any more than in a law. We are to find out the intention of the parties by just rules of interpretation applied to the subject matter; and having found that, our duty is to follow it as far as it goes, and to stop where that stops-whatever may be the imperfections or difficulties which it leaves behind. 351. Even in the constitutional context, the Marshall Court was reluctant to vary a clear text in light of the mischief that apparently inspired it. In Sturges v. Crowinshield, 17 U.S. (4 Wheat.) 122 (1819) (Marshall, C.J.), the Court held that New York's insolvency statute, which operated retrospectively, violated the Contract Clause. U.S. Const. art. I, 10, cl. 1 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . ."). The debtor argued that the clause had been inspired by state practices "of emitting paper money, of making property which was useless to the creditor a discharge of his debt, and of changing the time of payment." Sturges, 17 U.S. (4 Wheat.) at 199. Given "the prevailing evil" at which the clause was directed, those forms of debtor relief alone were said to be "within the true spirit of the prohibition." Id. In rejecting that argument, the Court emphasized that "the spirit of an instrument, especially of a constitution, is to be respected not less than the letter, yet the spirit is to be collected chiefly from its words." Id. at 202. And it "would be dangerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation." Id. Similarly, in Thomson v. United States, 23 F. Cas. 1107, 1109 (C.C.D. Va. 1820) (No. 13,985), Marshall asked, "Is the spirit of the law more favourable to the claim than its letter? By the spirit of the law, I understand, the intention of the legislature, to be collected from the general language of the act, the scope of its provisions, and the objects to be attained." He nonetheless found that the issue was resolved by the clear import of the text: The object of this section cannot be doubted. It is to exclude all vessels owned by British subjects, from the waters of the United States. Its language conveys this The other intention, and is obviously calculated to carry it into full effect .... sections of the law... [also] show a rigorous determination on this whole subject, which forbids the suspicion that the intention of the legislature, or in other words, the spirit of the law, is more favourable to the claimants than its letter. Id. 352. The Schooner Paulina'sCargo, 11 U.S. (7 Cranch) at 61; see also The Adventure, 1 F. Cas. at 204-05. HeinOnline -- 101 Colum. L. Rev. 93 2001
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chief at which it was directed, "the legislature can at any time furnish the '353 correction by expressing its will on the subject. Perhaps the leading example of the Marshall Court's overall approach is United States v. Fisher, in which the Court recognized that the United States had priority over all other creditors when a debtor of the federal government became insolvent. 35 4 Section 5 of the statute under review provided, in relevant part, that "where any revenue officer, or other person, hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent, . . . the debt due to the United States shall be first satisfied." 355 In holding that the debts of a private citizen fell within this federal priority statute, the Court began by noting that "where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain.
' 35 6
Although the broad language of Section 5 "em-
3 brace [d] the case before the court," 5 7 the competing creditors in Fisher argued that the title of the act was limited to "receivers of public money," a term that excluded a private citizen's debts to the United States. 358 In addition, the first four sections of the statute clearly prescribed procedures for handling cases involving "[a] ny revenue officer or other person accountable for public money," suggesting that "debtors of a particular description only were in the mind of the legislature." 359 In other words, consistent with the premises of the equity of the statute, the creditors asked the Court to harmonize all five sections of the act in light of its apparent background purpose to regulate those who received public money in connection with official duties. In an opinion by ChiefJustice Marshall, the Court rejected this effort to narrow the statute. The Court reasoned that the title of the act could not "controul plain words in the body of the statute," but could only be used to "assist in removing ambiguities."3 60 In addition, the natural meaning of Section 5 was, if anything, reinforced by the earlier sections' more precise reference to "any revenue officer or other person accountable for public money." Focusing on the variation in phrasing, the Court concluded that, "[w]ith this expression completely in view, and having used it in part, the description would probably have been adopted throughout, had it been the intention of the legislature to describe the same class of debtors. '3 6 1 Of perhaps the greatest importance, the Court
353. The Adventure, 1 F. Cas. at 205.
354. 6 U.S. (2 Cranch) 358, 397 (1805) (Marshall, CJ.). 355. Id. at 385 (citation omitted). 356. Id. at 386. 357. Id. at 385. 358. Id. at 386-87. 359. Id. at 387-88 (emphasis added). 360. Id. at 386. 361. Id. at 388. The Court explained the divergence as follows. The first four sections "all relate to the mode of proceeding on suits instituted in courts, and each section regulates a particular branch of that proceeding." Id. at 388-89. The subject in Section 5,
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also rejected the claim that enforcing the statute as written would produce intolerable mischiefs: That the consequences are to be considered in expounding laws, where the intent is doubtful, is a principle not to be controverted; but it is also true that it is a principle which must be applied with caution, and which has a degree of influence dependent on the nature of the case to which it is applied. Where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.-But where only a political regulation is made, which is inconvenient, if the intention of the legislature be expressed in terms that are sufficiently intelligible to leave no doubt in the mind when the words are taken in their ordinary sense, it would be going a great way to say that a constrained interpretation must be put upon them, to avoid an inconvenience which ought to have been contemplated in the legislature when the act was passed, and which, in their opinion, was probably overbalanced 3 62 by the particular advantages it was calculated to produce. Leaving aside (for the moment) the Court's dicta suggesting that it would apply what we might call "clear statement rules,"3 63 Marshall's opinion for the Court made clear that it would strictly enforce a clear statute as written in the typical case. Whatever hardships might flow from enforcing the unambiguous terms of a statute, they were for "the legislature to 364 appreciate," not the federal courts. As others have argued, the Marshall Court of course did not confine its interpretive strategy to the statutory text.3 65 Fisher itself suggests that the Court in that period also relied on background interpretive principles to guide its interpretations. 366 This consideration does not undermine the premise that the Marshall Court's interpretive philosophy was built around what we would call the faithful agent theory, rather than the equity of the statute. Consider, for example, Marshall's use of canons of interpretation. At the most basic level, Marshall relied on semantic rules
the priority of the United States in cases of insolvency, "is unconnected with that which had been disposed of in the foregoing sections, so is the language employed upon it without reference to that which had been previously used." Id. at 389. 362. Id. at 389-90. 363. For analysis of clear statement rules in relation to the faithful agent theory, see infra Part IV.D. 364. Fisher, 6 U.S. (2 Cranch) at 390. 365. See, e.g., Hobson, supra note 342, at 161-63 (discussing Marshall's use of clear statement rules); Yoo, Marshall's Plan, supra note 325, at 1618 (describing Marshall's use of interpretive canons). 366. See Fisher, 6 U.S. (2 Cranch) at 390 ("Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness.., to suppose a design to effect such objects."). HeinOnline -- 101 Colum. L. Rev. 95 2001
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of construction to decipher statutory meaning.3 6 7 Such reliance, however, is fully compatible with the faithful agent theory. As Frankfurter once wrote, such canons are "axioms of experience,"3 6 8 rules of thumb about the way speakers commonly use language in a legal context. In modern terms, if communication depends on a shared set of conventions for deciphering language, then previously established canons of construction in fact may serve as an important common point of reference for legislators and judges. 369 Whether or not they can reliably serve this purpose, 370 Marshall seems to have justified the canons along those lines, characterizing them as "plain rules laid down by common sense for the exposition of statutes which have been uniformly acknowledged. ' 371 Indeed, he explicitly linked the canons to the search for legislative intent, noting that they "are dictated by good sense, and sanctioned by immemorial usage, which require that the intent of the Legislature shall have effect."3 72 Such canons accordingly were deployed as common sense rules of language, never to be used in a way that would "overrule the intention '373 of the legislature. The Marshall Court, however, also applied what we would think of as substantive, rather than semantic, canons-that is, canons that sought to achieve substantive aims, not merely to assist in decoding language. Perhaps the two most important examples were the rule of lenity and the canon requiring the interpretation of statutes, where possible, to avoid conflict with the law of nations. The rule of lenity, of course, instructed that "penal laws are to be construed strictly. ' 374 This maxim, according
367. See, e.g, Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,191 (1824) (Marshall, C.J.) ("It is a rule of construction, acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power, that which was not granted-that which the words of the grant could not comprehend."); id. at 194 ("If this be the admitted meaning of the word .... it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it."); The Adventure, I F. Cas. 202, 204 (C.C.D. Va. 1812) (No. 93) (Marshall, CircuitJustice) (endorsing "the rule of construction which would give some effect to every part of the sentence"). 368. Frankfurter, Refelections, supra note 7, at 544. 369. See infra Part IV.B; see also supra notes 64-65 and accompanying text. 370. Karl Llewellyn famously argued that the canons of construction are indeterminate and therefore wholly subjective. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950) (noting "there are two opposing canons on almost every point"). More recent scholarship, however, has suggested that Llewellyn overstated his case, giving insufficient consideration to the judiciary's capacity to make sense of canons in context. See Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 650-51 (1992); Sunstein, Interpreting Statutes, supra note 11, at 451-52. 371. Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52-53 (1804) (Marshall, C.J.). 372. The Mary Ann, 21 U.S. (8 Wheat.) 380, 387 (1823) (Marshall, C.J.). 373. The Adventure, 1 F. Cas. 202, 204 (C.C.D. Va. 1812) (No. 93) (Marshall, Circuit Justice). 374. United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.).
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to Marshall, was "founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department." 375 And it was applied not only in the criminal context, but also on occasion to noncriminal penal statutes. 376 The law-of-nations canon at least superficially appeared to have even greater impact, at one point leading the Court to observe that a statute "can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of na3 77 tions as understood in this country. Although the substantive canons sought to advance aims that the legislature had not expressly identified, the Court nonetheless qualified them in light of the faithful agent theory. 378 In particular, the Court took pains to state that the rule of lenity and the law-of-nations canon could not be used to overcome Congress's clear intent. Although the rule of lenity required strict construction of penal statutes, such statutes were "not to be construed so strictly as to defeat the intention of the legislature." 379 Indeed, the Court made clear that "[t]he maxim is not to be so
375. Id. 376. See Sixty Pipes of Brandy, 23 U.S. (10 Wheat.) 421, 421-23 (1825) (JohnsonJ.); The Adventure, ] F. Cas. at 204; Hobson, supra note 342, at 161-62 (noting that the rule of lenity applied to civil penalties under embargo and nonintercourse acts); Yoo, Marshall's Plan, supra note 325, at 1625. 377. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). 378. The rule of lenity was perceived to be a deeply embedded principle of interpretation. Marshall, for example, described lenity as "an ancient maxim," emphasizing that it "is perhaps not much less old than construction itself." Wiltberger, 18 U.S. (5 Wheat.) at 95. As such, that maxim perhaps formed one of the background assumptions against which even the earliest Congresses enacted penal statutes. Cf. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991) (presuming "that Congress legislates with knowledge of our basic rules of statutory construction"). Hence, a faithful agent might assume that a reasonable legislator voted for statutes on the assumption that they would be interpreted in light of that rule. See infra Part IV.B. The law-of-nations canon may present somewhat different considerations. Although it may have had roots in English law, see Pound, Common Law, supra note 208, at 394-95, at least some scholars believe that the antecedents of that canon are somewhat obscure. See Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 487-88 (1998) (noting some support in English law, though largely in decisions rendered after the adoption of the U.S. Constitution). 379. Wiltberger, 18 U.S. (5 Wheat.) at 95. Indeed, an important function of the rule of lenity was to prevent the extension of a criminal statute according to its reason. In Wiltberger, the principal question was whether a statute punishing "manslaughter committed on the high seas" applied to a killing committed in a river in China. Id. at 78, 93. The Court reasoned: If the words be taken according to the common understanding of mankind, if they be taken in their popular and received sense, the "high seas," if not in all instances confined to the ocean which washes a coast, can never extend to a river about a half a mile wide, and in the interior of a country. Id. at 94. Particularly because other crimes enumerated in the section did not include a limitation as to place, the Court concluded that "the distinction which the legislature has taken, must of course be respected by the Court." Id. at 104. Although the United States HeinOnline -- 101 Colum. L. Rev. 97 2001
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applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in 380 which the legislature has obviously used them, would comprehend."
Similarly, the law-of-nations canon instructed federal courts that "the laws
of the United States ought not, if it be avoidable .... to be construed as to infract the common principles and usages of nations."3 8 Accordingly, while the Court sometimes rendered strained interpretations under the influence of those canons,38 2 the significant point is that the Court noneargued that it was highly improbable that Congress meant to draw distinctions among the various crimes with respect to their place of commission, the Court answered that "it is extremely improbable," but "probability is not a guide which a court, in construing a penal statute, can safely take." Id. at 105. 380. Id at 95. While riding circuit, Marshall made a similar point, tying the rule of lenity into the need to respect legislative supremacy in matters of punishment: The maxim that penal laws are to be construed strictly, has never been understood, by me at least, to imply, that the intention of the legislature, as manifested by their words, is to be overruled; but that in cases where the intention is not distinctly perceived, where, without violence to the words or apparent meaning of the act, it may be construed to embrace or exclude a particular case, where the mind balances and hesitates between two constructions, the more restricted construction ought to prevail; especially in cases where the act to be punished is in itself indifferent, and is rendered culpable only by positive law. In such a case, to enlarge the meaning of the words, would be to extend the law to cases in which the legislature has not extended it, and to punish not by the authority of the legislature, but of the judge. The Adventure, 1 F. Cas. at 204. 381. Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801) (Marshall, C.J.) (emphasis added); see also Schooner Charming Betsy, 6 U.S. (2 Cranch) at 118 (providing that "an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains"). 382. For example, in Talbot v. Seeman, the Court considered a claim for part of the salvage value of the ship Amelia. An American warship had recaptured the vessel after a French corvette had seized it from a citizen of Hamburg, which was neutral in the ongoing hostilities between the United States and France. 5 U.S. (1 Cranch) at 27. The relevant statute provided that "for the ships or goods belonging to... the citizens or subjects of any nation in amity with the United States," a salvage value of one-half would be allowed to an American re-captor if the ship in question remained more than ninety-six hours in the possession of the "enemy." Id. at 30. The Court noted that, in contrast with the statute, the law of nations would allow a salvage value of only one-sixth for the recapture of a neutral's vessel. See id. at 44. Accordingly, to avoid a conflict with the law of nations, the Court narrowly construed the relevant statute to exclude cases involving the recapture of a neutral. See id. In particular, the Court emphasized that the statute applied to the recapture of ships in possession of the "enemy." Id. Although in context that term likely referred to an "enemy" of the United States, the Court reasoned: The expression used is the enemy. A vessel retaken from the enemy. The enemy of whom? The court thinks it not unreasonable to answer, of both parties. By this construction the act of congress will never violate those principles which we believe, and which it is our duty to believe, the legislature of the United States will always hold sacred. Id. at 44. Although the Talbot Court then expressly relied on law-of-nations principles to determine the appropriate salvage value, early nineteenth-century Americans would not HeinOnline -- 101 Colum. L. Rev. 98 2001
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theless felt a clear duty to frame its practice in order to avoid contradicting the faithful agent theory; the canons applied only if the statute could plausibly bear the resulting interpretation. Finally, it must be acknowledged that the Marshall Court sometimes departed from the plain import of an enacted text. Indeed, Marshall has been described as a strong judge who sometimes bent the text of the law, particularly the constitutional text. 383 Two considerations suggest that even if this characterization is correct, it does not undermine the inference that the Marshall Court ultimately regarded federal judges as faithful agents of the legislature. 38 4 First, even if Marshall did bend the law, it is significant that he felt the need to justify his decisions in terms that we would describe as the faithful agent theory. Had the equity of the statute supplied an acceptable theory ofjudicial power, it would have been possible for him to invoke its premises when he wished to avoid the most natural import of a text. Second, when the Court did not enforce the most natural meaning of a statutory text, it typically required some exceptional
have regarded such a decision as judicial lawmaking. In contrast with the lex loci (rules concerning local matters such as real estate), the law of nations at this time addressed largely transnational concerns, such as the law merchant, the maritime law, and the law respecting the relations of sovereigns. See Clark, supra note 303, at 1282-83. Whereas modem "federal common law" is considered to be judge-made law, see Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 890 (1986), and Thomas W. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 5 (1985), early Americans believed that the law of nations "was not attached to any particular sovereign; rather, it existed by common practice and consent among a number of sovereigns." William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517 (1984); see also Swift v. Tyson, 41 U.S. 1, 19 (1842) (Story, J.) (noting that commercial law "may be truly declared in the languages of Cicero, adopted by Lord Mansfield .... to be in a great measure, not the law of a single country only, but of the commercial world"). Because courts applying the law of nations believed that they were merely implementing a pre-existing body of customary law, this decisionmaking process was not conceived of as lawmaking per se. See, e.g., Curtis A. Bradley, The Status of Customary International Law in U.S. Courts-Before and After Erie, 26 Denv. J. Int'l L. & Pol'y 807, 813 (1998) ("When courts applied this law, they were not seen as 'legislating,' because, among other things, the law was believed to be objective and discoverable."); Clark, supra note 303, at 1287 ("Because courts applying the law merchant were attempting to discern a preexisting body of law, they were not engaged in unrestrained lawmaking."); StewartJay, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 832 (1989) ("Courts and others seeking to apply the law of nations assumed without hesitation that they were referring to an objectively identifiable body of law. .. "). 383. See, e.g., Popkin, Statutes in Court, supra note 140, at 76-78. But see Snowiss, supra note 344, at 976. 384. Hamilton had anticipated thatjudges might willfully misconstrue statutes or the Constitution, treating it as a necessary risk of having an independent judiciary. See The Federalist No. 78, supra note 9, at 468-69 (Alexander Hamilton). To acknowledge that judges sometimes acted willfully is not to suggest that such behavior represents a legitimate exercise of judicial power. HeinOnline -- 101 Colum. L. Rev. 99 2001
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justification and sought to justify its action explicitly in terms of legislative intent. 38 5 Thus, as Chief Justice Marshall once explained for the Court: [I]f, in any case, the plain meaning of a provision ... is to be disregarded, because we believe that the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesita386 tion, unite in rejecting the application. The Court further emphasized that "[t]he whole weight of proof ... is thrown upon him who would introduce a distinction to which the words of the law give no countenance. '' 38 7 And when the Court did limit the scope of an otherwise unqualified statutory phrase, it took pains to emphasize that "the intent of the legislature will determine the extent of the limitation. '388 Accordingly, even if the Marshall Court did not always
385. See Ross v. Doe, 26 U.S. (1 Pet.) 655, 667 (1828) (Trimble, J.) (construing a statute broadly to "effect the liberal intentions of the legislature"); Post Master Gen. v. Early, 25 U.S. (12 Wheat.) 136, 152 (1827) (Marshall, C.J.) ("There is always difficulty in extending the operation of words beyond their plain import; but the cardinal rule of construction is, that where any doubt exists, the intent of the legislature, if it can be plainly perceived, ought to be pursued."). 386. Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-03 (1819) (Marshall, CJ.); see also United States v. Bright, 24 F. Cas. 1232, 1235 (C.C.D. Pa. 1809) (No. 14,647) (Washington, Circuit Justice): In most cases it will be found that the soundest and safest rule by which to arrive at the meaning and intention of a law is to abide by the words which the lawmaker has used. If he has expressed himself so ambiguously that the plain interpretation of the words would lead to absurdity, and to a contradiction of the obvious intention of the law, a more liberal course may be pursued. For a comparable formulation of the absurdity doctrine in more recent case law, see infra note 403. 387. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 220 (1824) (Marshall, C.J.). 388. United States v. Palmer, 16 U.S. (3 Wheat.) 610, 632 (1818) (Marshall, C.J.). In Palmer,the relevant statute inflicted capital punishment for piracy. By its terms, it applied to "any person or persons" who committed "upon the high seas" any one of an enumerated set of crimes, including murder and robbery. Id. at 626. Despite the unqualified statutory language, Chief Justice Marshall's opinion for the Court limited the statute "to American citizens, or to persons on board American vessels, or to offences committed against citizens of the United States." Id. at 630. The Court noted that the title of the act was itself limited to "the punishment of certain crimes against the United States." Id. at 631. Although the title of the statute could not "control its words," it might assist the Court in conducting the central inquiry-determining "what was in the mind of the legislature." Id. at 631. Moreover, with respect to acts of piracy, "[e]very nation provides for such offenses the punishment its own policy may dictate; and no general words of a statute ought to be construed to embrace them when committed by foreigners against a foreign government." Id. at 632-33. Hence, the Court found it unthinkable that Congress intended to cover crimes in which the United States had no direct interest. Whether or not that conclusion was justified, the important point is that the Court justified narrowing the statute in terms of legislative intent. Indeed, in the same opinion, the Court made clear that the federal court's "duty is confined to the application of the rule which the legislature may prescribe for it." Id. at 634. HeinOnline -- 101 Colum. L. Rev. 100 2001
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fully respect the text of a statute, it generally invoked the faithful agent 38 9 theory to justify its deviations. None of this is to say, of course, that the equity of the statute disappeared from the federal courts when Chief Justice Marshall ascended to the bench. Federal courts, at times, invoked that doctrine well into the 39 1 nineteenth century.3 90 Even the Supreme Court did so on occasion. Certain leading treatises in the early republic also endorsed the doctrine.3 92 Accordingly, it cannot be said that the early history resolves the
389. For a justification of Marshall's intent-based departures from the text, see Marshall's Defense, supra note 346, at 168-69: [T]he great duty of ajudge who construes an instrument, is to find the intention of its makers. There is no technical rule applicable to every case, which enjoins us to interpret arguments in a more restricted sense than their words import. The nature of the instrument, the words that are employed, the object to be effected, are all to be taken into consideration, and to have their due weight. See also United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) (Marshall, C.J.) ("Where the mind labours to discover the design of the legislature, it seizes every thing
from which aid can be derived . . ").
390. See, e.g., Brooks v. Norcross, 4 F. Cas. 294, 296 (C.C.D. Mass. 1851) (No. 1957) ("[T] hough the act only specifies patented in its provision in the case of the issue of letters, it must mean patented wherever the word is used, or be entirely deficient, destitute of equality, and a casus omissus, probably by sheer accident."); Sherwood v. Sutton, 21 F. Cas. 1303, 1307 (C.C.D.N.H. 1828) (No. 12,782) (recognizing fraudulent concealment as equitable exception to statute of limitations and citing many cases that "appear to me to carry the construction beyond the literal import of the words to the substantial objects of the statute"); id. ("[E]very statute is to be expounded reasonably, so as to suppress, and not to extend, the mischiefs, which it was designed to cure."); Bates v. Drury, 2 F. Cas. 1020, 1020 (C.C.D.R.I. 1825) (No. 1100) ("We think the case of an expiration of the term of office under this last act falls within the equity of the act of 1799, or at least, that it furnishes the true rule to govern the court, in what we deem a casus omissus."). 391. In United States v. Freeman, 44 U.S. (3 How.) 556, 565 (1845), for example, the Court explained: [T] he meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed-the limitation of the rule being, that to extend the meaning to any case not included in the words, the case must be shown to come within the same reason upon which the lawmaker proceeded, and not only within a like reason. This court has repeatedly, in effect, acted upon the rule, and there may be found, in the reports of its decisions, cases under it, like the cases which have been cited from the reports of the English courts. In Walton v. Cotton, 60 U.S. (19 How.) 355 (1856), the Court awarded benefits to "grandchildren" under a statute authorizing pension payments to the "children" of deceased veterans, reasoning that Congress had not "named grandchildren in the acts; but they are included in the equity of the statutes." Id. at 356, 358. 392. See, e.g., Francis Lieber, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics, With Remarks on Precedents and Authorities 57-58 (Boston, Charles C. Little & James Brown 1839): It is... construction alone which saves us, in many instances, from sacrificing the spirit of a text or the object, to the letter of the text, or to the means by which that object was to be obtained. And without construction, written laws, in fact any laws or other texts, containing rules of actions, specific or general, would, in many HeinOnline -- 101 Colum. L. Rev. 101 2001
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question beyond a shadow of a doubt. What can be claimed is that the overall tenor of federal decisions, as early as the Marshall Court, indicated a powerful endorsement of the faithful agent theory of judging. Because decisions invoking the equity of the statute are hard to reconcile with the forceful and consistent articulation of that theory, they appear to be outliers. Indeed, as discussed, early American judges may have applied the doctrine simply because it was described in the familiar English sources as an ancient principle of construction. The early decisions applying the equity of the statute commonly failed even to consider whether that doctrine fits with the premises of a system of separated powers, whose legislative function is channeled into a carefully designed process of bicameralism and presentment. To justify the equity of the statute in that light, moreover, would have required the Court to contradict a large body of case law that explicitly linked its interpretive methodology to the distinctive functions of the legislative and judicial powers under the U.S. Constitution. While the question is not wholly free from doubt, it seems plausible that the equity of the statute resurfaced from time to time as the vestige of outdated concepts whose anachronistic character took time to become fully apparent. At a minimum, the equity of the statute did not inform an early judicial consensus about the meaning of the judicial power; if anything, that doctrine was contradicted by the constitutional consensus that, in fact, took shape during the Marshall Court. 3. Subsequent History: The Consolidation of the FaithfulAgent Theory. Although not directly relevant to the original meaning, subsequent developments confirm that the faithful agent theory took hold as the dominant understanding of the judicial power, and that the equity of the statute ultimately failed to withstand the test of time. By the mid-nineteenth century, American treatise writers had begun to criticize the equity of the statute, in strong and explicit terms, as incompatible with the appropriate role of the judiciary. 393 Perhaps more than anything else, however, the rise of Austinian positivism "crystallized the issue by distinguishing becases, become fearfully destructive to the best and wisest intentions, nay, frequently, produce the very opposite of what it was purposed to effect. See also 1 Joseph Story, Equity Jurisprudence 6, at 6 (William W. Story ed., 10th ed. 1870) (1835) ("[A] more general way in which this sense of equity ... is applied, is, to the interpretation and limitation of the words of positive or written laws; by construing them, not according to the letter, but according to the reason and spirit of them."); id. at 8 ("In this, Equity is synonymous with justice .... " (quoting 3 Blackstone, supra note 9, at *429)). 393. See Popkin, Statutes in Court, supra note 140, at 64-73 (describing evolution of commentary on statutory interpretation). For example, in 1848, E. Fitch Smith wrote, in his treatise on statutory construction: The duty of the judge is to adhere to the legal text, as his sole guide. The legislator also, has his important rights and solemn duties. Where there has been an omission in an act,-or where his intention has been misconceived, and the remedy, in consequence, carried too far, or not given full effect to, he may supply deficiencies,-may state his own meaning with greater precision, and guard, for the future, against an application of the remedy more extensive than the HeinOnline -- 101 Colum. L. Rev. 102 2001
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tween genuine and spurious interpretation." 39 4 Like others, Austin emphasized that the judge had a duty to respect the legislature's supremacy by discerning and enforcing the legislative intent.3 95 Accordingly, when a court stretched or contracted a statute to approximate its reason or spirit, the judge assumed the role of the legislator: [T] he judge may depart from the manifest sense of a statute, in order that he may carry into effect its ratio or scope. But, in these cases, he is not a judge properly interpreting the law, but a subordinate legislator correcting its errors or defects. He supposes the expressions which the lawgiver would have used .... if the latter had expressed his intention in appropriate terms ....
And those supposed expressions ....he substitutes for the clear
This, howexpressions which the lawgiver has actually used .... ever, is not interpretation,but a process of legislative amendment, or a process of legislative correction, which 6lays all statute law at 39 the arbitrary disposition of the tribunals. By the late nineteenth century, moreover, the Supreme Court had firmly settled on the idea that the federal judge's duty was to implement
the legislature's intent. 397 To be sure, this period is often viewed as a
intention. E. Fitch Smith, Commentaries on Statute and Constitutional Law 421, at 589 (Albany, Gould, Banks & Gould 1848). In 1857, Theodore Sedgwick added: A review of the decisions which we have thus grouped together, can hardly fail to bring to the lips of the student the motto of this volume: "Great is the mystery of judicial interpretation." Here we find cases in numbers, and the numbers might be easily increased, where laws have been construed, not merely without regard to the language used by the legislator, but in defiance of his expressed will. Qualifications are inserted, exceptions are made, and omitted cases provided for, and the statute is in truth remolded, by the mere exercise of the judicial authority. It is vain to seek for any principle by which these decisions can be supported, unless it be one which would place all legislation in the power of the judiciary. Sedgwick, supra note 124, at 305-06. 394. de Sloovere, supra note 124, at 594; see also Pound, Spurious Interpretation, supra note 47, at 380 (endorsing Austin's views on genuine and spurious interpretation). 395. See 2 Austin, supra note 1, at 1023-24 ("The discovery of the law which the lawgiver intended to establish, is the object of genuine interpretation: or (changing the phrase), its object is the discovery of the intention with which he constructed the statute, or of the sense which he attached to the words wherein the statute is expressed."). 396. Id. at 650. 397. The cases are legion. See, e.g., Nat'l. Bank of Commerce v. Downie, 218 U.S. 345, 357 (1910) ("Any other holding will effect a repeal of the statute by mere judicial construction in disregard of the plain, unequivocal intent of Congress as indicated by the statute."); N. Sec. Co. v. United States, 193 U.S. 197, 360 (1904) ("Guided by these longestablished rules of construction, it is manifest that if the Anti-Trust Act is held not to embrace a case such as is now before us, the plain intention of the legislative branch of the Government will be defeated."); Dewey v. United States, 178 U.S. 510, 521 (1900) ("Our duty is to give effect to the will of Congress, as thus plainly expressed."); Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 29 (1895) ("[W]e have no means ofjudging of the intention of Congress in this case except by the language employed in the declaration of their will."); Lau Ow Bew v. United States, 144 U.S. 47, 59 (1892) ("Nothing is better settled than that
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period of loose judicial practice, perhaps typified by the Court's opinion in Church of the Holy Trinity v. United States.398 But while Holy Trinity Church's atextualism was hardly unusual for its time, 399 the important point is that the Court felt constrained to justify its departures from the text as a superior way to discover the legislature's true intent.400 Hence, in United States v. Goldenberg,40 1 Justice Brewer, Holy Trinity Church's author, wrote for the Court: The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator. It is true that there are cases in which the letter of the statute is not deemed controlling, but the cases are few and exceptional, and only arise when there are cogent reasons for believing 40that the 2 letter does not fully and accurately disclose the intent. As the same Justice made clear in his opinion for the Court in Treat v. White, a "fair consideration of the [statute's] surroundings may indicate that that which is within the letter is not within the spirit," but this "proposition implies that there is something which makes clear an intent on the part of Congress against enforcement according to the letter."403 By
statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion."); Platt v. Union Pac. R.R. Co., 99 U.S. 48, 64 (1878) ("[I]n endeavoring to ascertain what the Congress of 1862 intended, we must, as far as possible, place ourselves in the light that Congress enjoyed, look at things as they appeared to it, and discover its purpose from the language used in connection with the attending circumstances."); Mo., Ky., & Tex. Ry. v. Kan. Pac. Ry. Co., 97 U.S. 491, 497 (1878) ("It is always to be borne in mind, in construing a congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress."); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 607 (1869) ("[T]he terms employed by the legislature are not to receive an interpretation which conflicts with acknowledged principles of justice and equity, if another sense, consonant with those principles, can be given to them. But this rule cannot prevail where the intent is clear."). 398. 143 U.S. 457 (1892). 399. See, e.g., N. Pac. R.R. Co. v. Amacker, 175 U.S. 564, 569 (1900); United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 707 (1899); Price v. Forrest, 173 U.S. 410, 422-23 (1899). 400. See supra Part I.A; see also Frickey, supra note 73, at 246 ("Notwithstanding the flexible approach to statutory interpretation suggested by the 1892 opinion in Holy Trinity Church, many Supreme Court decisions of the early twentieth century seemed to view statutory interpretation as the mechanical application of either statutory text or legislative intent to the interpretive problem at hand." (citations omitted)). 401. 168 U.S. 95 (1897). 402. Id. at 102-03. 403. 181 U.S. 264, 267-68 (1901); see also Hawaii v. Mankichi, 190 U.S. 197, 212 (1903) (acknowledging that a literal application of the resolution annexing Hawaii would violate "the intention of the legislative body"); Rio Grande Dam & Irrig. Co., 174 U.S. at 706-07 (refusing to accept a construction that "ignores the spirit of the legislation and carries the statute to the verge of the letter and far beyond what under the circumstances of the case must be held to have been the intent of Congress"); Price, 173 U.S. at 422-23 HeinOnline -- 101 Colum. L. Rev. 104 2001
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the opening of the twentieth century, it had become a matter of consen40 4 sus that the equity of the statute was a dead letter.
IV. CAN THERE BE TEXTUALISM WITHOUT EQUITY?
For most of the twentieth century, the Court had little occasion to consider the equity of the statute. If, as Holy Trinity Church suggested, a court could reliably invoke a statute's reason or purpose to ascertain Congress's genuine intent (even though it might deviate from the enacted text), then atextual, purposive interpretation could be justified as a superior way for a faithful agent to show fidelity to its principal. 40 5 The recent
(holding that statute restricting "all transfers and assignments made of any claim upon the United States" did not apply to "transfers" made by judgment of a state court of competent jurisdiction; such transfers did not implicate "the object of Congress . .. to protect the Government, and not the claimant, and to prevent frauds upon the Treasury"). The Court also drew an explicit connection between avoiding absurd results and implementing legislative intent. See, e.g., Calderon v. Atlas S.S. Co., 170 U.S. 272, 281 (1898) (the rule that "intention must be gathered from the words" does not preclude avoidance of "absurdity, which the legislature ought not to be presumed to have intended"); Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 172 (1896) ("Such an absurdity cannot be imputed to the legislature."); Folsom v. United States, 160 U.S. 121, 127 (1895) ("[W]here the language of a statute leads to an absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it modifying the meaning of the words, so as to carry out the real intention."). 404. By the time he published the 1911 edition of his treatise, Henry Campbell Black was able to observe: The right to apply an equitable construction to the written laws was often adverted to as one to be exercised with caution, on account of the danger of turning the courts into legislatures, and in modern times it has been disavowed by them, and its principle distinctly repudiated. It is said that the rules for the interpretation of statutes are now the same in courts of equity as in courts of law, and that the dangerous and misleading ancient rule has given way to the more conservative maxim that equity follows the law. And in point of fact, so far as the principle of equitable construction involved the claim of an authority to correct the enacted law, or to mould it to the judge's notions ofjustice and propriety, or to disregard its positive mandates on any considerations of hardship or inconvenience, it was originally an usurpation and finds no place in modern law. Black, Handbook, supra note 125, 28, at 62-63. For the assessments of other latenineteenth- and early-twentieth-century commentators, see, for example, J.G. Sutherland, Statutes and Statutory Construction 414, at 529 (Chicago, Callaghan & Co 1891) ("The underlying principle is obsolete, though to a limited extent it still exercises some influence in the domain of liberal construction."); de Sloov4 re, supra note 124, at 597 (noting that the doctrine is "now wholly discredited in its broadest meaning"); Horack, Plowden's Reports, supra note 87, at 213 (noting that many sixteenth- and seventeenth-century judicial "statements concerning methods of interpretation have been discredited"); Landis, Sources of Law, supra note 87, at 218 ("Courts to-day have avowedly rejected as part of their technique the doctrine of the equity of the statute."); Loyd, supra note 87, at 76 ("[T]he principle involved in the phrase [equity of the statute], as applied in the seventeenth century, has been relegated to the limbo of legal antiquities, reappearing now and then in altered form, the ghost of its former self."). 405. See supra Part I.A. In contrast with the equity of the statute, the Court's opinions clearly invoked the reason or purpose of the law as evidence of the legislature's specific intent. See supra notes 46 and 61. HeinOnline -- 101 Colum. L. Rev. 105 2001
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rise of textualism upset that state of affairs by unsettling the premise that implementing a statute's purpose, in preference to its clear text, could provide a more accurate reading of Congress's true instructions. 40 6 This development, in turn, has provoked the revival of interest in the equity of the statute. If the faithful agent theory ultimately points toward textualism, proponents of the equity of the statute would restore that ancient doctrine because they find textualism normatively unattractive. In particular, critics of textualism contend that it requires judges to apply a literal and static interpretive framework, 40 7 that it compels legislators to specify policy at an impossible level of detail, 40 8 and that it often compels judges to enforce irrational or unjust results. 40 9 If such results are in fact required by textualism, it would be unattractive indeed to reject the equity of the statute. Accordingly, to give full consideration to the equity of the statute, one should consider the normative concerns that appear to have provoked its revival. In particular, one must ask whether they rest on an accurate perception of the theory and practice of textualism. Although a full consideration of textualism would require its own article, it is worth suggesting why textualism, properly understood, does not permit interpreters to ignore context, purpose, rationality, or established notions of justice in the application of a statutory text. Four considerations support this conclusion. First, textualists do not forswear purposive interpretation of statutes. Rather, they are weak purposivists, willing to consider purpose when the text of a statute is ambiguous as applied. Textualists thus reject purposive interpretation only when it requires them to assign the
406. See supra Part I.B. 407. See, e.g., W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 102 (1991) (Marshall, J., dissenting) (arguing that textualism uses "the implements of literalism to wound, rather than to minister to, congressional intent"); id. at 113 (Stevens, J, dissenting) (maintaining that the textualists read statutes through "thick grammarian's spectacles"); Frickey, supra note 73, at 250, 258 (equating modern textualism with "literalism"); Strauss, supra note 85, at 435 (describing textualism as "somewhat rigid and time-bound"). 408. Observing the nineteenth-century English legal system, Francis Lieber argued that judicial literalism may result in a pathological level of statutory detail, at times defeating the very aim of statutory clarity: The British spirit of civil liberty, induced the English judges to adhere strictly to the law, to its exact expressions. This again induced the law-makers to be, in their phraseology, as explicit and minute as possible, which causes such a tautology and endless repetition in the statutes of that country, that even so eminent a statesman as Sir Robert Peel, declared in parliament, that he "contemplates no task with so much distaste, as the reading through an ordinary act of parliament." Men have at length found out, that little or nothing is gained by attempting to speak with absolute clearness, and endless specifications, but that human speech is clearer, the less we endeavor to supply by words and specifications, that interpretation which common sense must give to human words. Lieber, supra note 392, at 30. 409. See Sunstein, Interpreting Statutes, supra note 11, at 424 (arguing that textualism is indifferent to "the irrational, unjust, and often unintended outcomes produced by literalism in hard cases").
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text a meaning that it will not bear in context. Second, textualists believe that language has meaning only in its social and linguistic context. Hence, they recognize that statutory terms may have specialized (rather than ordinary) meanings, that Congress has the capacity to use legal shorthand (terms of art) to import common law concepts into the statute law of the United States, and that particular statutory contexts may carry with them important background implications. In a mature legal system, this contextual approach affords legislators considerable flexibility in enacting workable and rational statutory schemes. Third, and somewhat more controversially, textualists accommodate rationality concerns by allowing the disregard of clearly absurd applications. Fourth, in contrast with the equity of the statute as applied in the English system, textualism operates against the backdrop of a written Constitution and judicial review. If the equity of the statute served as the primary safeguard against unjust statutes at common law, the Constitution provides a variety of mechanisms to prevent the enactment or enforcement of statutes that contradict constitutionally recognized concepts ofjustice. A. Textualism and Statutory Purpose Even under principles of textualism, Congress retains ultimate control over how much room to leave for flexibility and the consideration of purpose under the statute law of the United States. Textualism merely prohibits interpretation that contradicts the clear conventional import of a statute. Barring an established term of art, a statute banning "dogs" from a public park cannot apply to domesticated "bobcats," no matter how compelling the background purpose appears to be. 4 10 But when a statutory text is vague or open-ended, textualists attempt to resolve its 1 4 1 ambiguity in light of its background purpose. Indeed, an important facet of the textualist conception of legislative supremacy acknowledges congressional latitude to delegate law-elaboration authority to agencies and courts.4 12 Hence, Congress can opt for more flexible, purposive interpretation simply by enacting standards
410. Easterbrook, Statutes' Domains, supra note 8, at 535. 411. See supra note 67 and accompanying text. 412. See, e.g., Mistretta v. United States, 488 U.S. 361, 417 (1989) (Scalia, J., dissenting) (arguing that "a certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action, and it is up to Congress, by the relative specificity or generality of its statutory commands, to determine-up to a point-how small or how large that degree shall be"). Similarly, Judge Easterbrook has written: No Member of Congress can anticipate all questions that will come to light; and a body containing hundreds of members with divergent agendas can't answer even a small portion of the questions that do occur to its members. That is one reason why Congress frequently delegates power to executive officials . . . . A presumption that Congress has resolved every question, with answers to be found if only the judiciary can look with a powerful loupe, would leave no room for the exercise of the delegated power. NBD Bank, N.A. v. Bennett, 67 F.3d 629, 633 (7th Cir. 1995).
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rather than rules. This possibility sets up an important, and perhaps constitutionally anticipated, set of structural incentives. 4 13 If a majority in Congress prefers to pursue precise legislative policies, it can enact detailed and specific statutes, increasing its ability to control discretion in the application of its commands, 4 14 but risking greater over- and underinclusiveness. 4 15 When flexibility is more crucial than precision, however, 4 16 Congress is free to legislate in more open-ended terms. B. Textualism, Literalism, and Statutory Context If textualists were literalists, it would be easy to understand the attraction of equitable interpretation. Modern textualists, however, are not literalists. In contrast to their early-twentieth-century predecessors in the "plain meaning" school, they do not claim that interpretation can occur "within the four corners" of a statute, 4 17 or that "the duty of interpretation does not arise" when a text is "plain." 4 18 Rather, modem textualists acknowledge that language has meaning only in context. 4 19 As discussed, they believe that statutory language, like all language, conveys meaning
413. See Manning, Textualism as Nondelegation, supra note 289, at 706. 414. As Max Radin once wrote: If there is a glaring contradiction between what the judge thinks desirable and what the great majority of the community so considers, the community must, in its legislative function, limit as carefully as it can by more easily determinable categories the range within which the judge shall select his desirables. But the legislature can not both have its cake and eat it. It can not indulge itself in using large, round, sonorous words and then complain that courts do not treat them as precise, definite, and unreverberant. Radin, Statutory Interpretation, supra note 40, at 884. 415. See Diver, supra note 10, at 72-73 (noting that greater statutory precision enhances problems of fit); Kaplow, supra note 10, at 591 (showing that "the simple rule is both over- and underinclusive compared to the more complex standard"). 416. These observations do not suggest that any statute, however broadly worded, can avoid all over- and underinclusiveness. The problem of fit is endemic to all generally worded statutes. And to claim that Congress can finely calibrate the desired flexibility of its statutes would be to deny a central textualist assumption about the complexity and unpredictability of the legislative process, Hence, while it is important to note Congress's capacity to enact more open-textured and flexible statutes, any evaluation of the workability of textualism must also consider, more specifically, the way textualists deal with determinate statutory commands. 417. White v. United States, 191 U.S. 545, 551 (1903). 418. Caminetti v. United States, 242 U.S. 470, 485 (1917); see also Arthur W. Murphy, Old Maxims Never Die: The "Plain-Meaning Rule" and Statutory Interpretation in the "Modern" Federal Courts, 75 Colum. L. Rev. 1299, 1299 (1975) ("The plain meaning rule has many formulations, but its essential aspect is a denial of the need to 'interpret' unambiguous language."). 419. See, e.g., Deal v. United States, 508 U.S. 129, 132 (1993) (Scalia, J.) (invoking the "fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used"); Easterbrook, Text, History, and Structure, supra note 62, at 64 ("Because interpretation is a social enterprise, because words have no natural meanings, and because their effect lies in context, we must consult these contexts."). HeinOnline -- 101 Colum. L. Rev. 108 2001
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only because a linguistic community attaches common understandings to words and phrases, and relies on shared conventions for deciphering those words and phrases in particular contexts. 420 Hence, textualists ask how "a skilled, objectively reasonable user of words" would have under4 21 stood the statutory text, as applied to the problem before the court. The "reasonable user" approach gives textualists significant room to account for the nuances of language, a factor that is especially significant in a mature legal system with a rich set of background legal understandings and conventions. Textualists, of course, often consult dictionaries as an important historical record of the ways in which speakers have used words in the past.4 22 But they do not stop there. As Judge Easterbrook once put it, a dictionary is merely "a museum of words, an historical catalog rather than a means to decode the work of legislatures." 423 Like any reasonable language user, textualists pay attention to the glosses often put on language (even in ordinary usage), the specialized connotations of established terms of art, and the background conventions that sometimes tell readers how to fill in the gaps inevitably left in statutory directions. Each of these considerations focuses on faithfully decoding the text, while sharply reducing the basic justification for the equity of the statute. First, textualists believe that reasonable users may give words a contextual gloss that reflects ordinary usage, but that is not found in dictionaries, which have a limited capacity to record all of the subtleties of usage. As Justice Scalia recently put it, "the acid test of whether a word can rea420. See supra text accompanying notes 64-65. 421. Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv.J.L. & Pub. Pol'y 59, 65 (1988); see also Chisom v. Roemer, 501 U.S. 380, 405 (1991) (Scalia, J., dissenting) ("We are to read the words of that text as any ordinary Member of Congress would have read them, and apply the meaning so determined." (citation omitted)). 422. See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 367 (1998) (ScaliaJ.) (discussing dictionary definition of "doubt"); United States v. LaBonte, 520 U.S. 751, 757 (1997) (Thomas, J.) (using dictionaries to determine what "the word 'maximum' most naturally connotes"). This does not, however, distinguish them from even the most committed purposivists. See, e.g., Muscarello v. United States, 524 U.S. 125, 128 (1998) (Breyer, J.) (using dictionaries to determine "primary meaning" of "carry"); Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 470 (1997) (Stevens, J.) (relying on dictionary to determine that the agency's interpretation "violates the ordinary meaning of the key word 'in'"). Indeed, the twentieth century's most influential purposivists, Hart and Sacks, once explained: An unabridged dictionary is simply an historical record, not necessarily allinclusive, of the meanings which words in fact have borne, in the judgment of the editors, in the writings of reputable authors. The editors make up this record by collecting examples of uses of the word to be defined, studying each use in context, and then forming a judgment about the meaning in that context. A good dictionary always gives examples of the use of the word in context in each of the meanings ascribed to it. Hart & Sacks, supra note 3, at 1190. 423. Easterbrook, Text, History, and Structure, supra note 62, at 67. HeinOnline -- 101 Colum. L. Rev. 109 2001
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sonably bear a particular meaning is whether you could use the word in 4 24 that sense at a cocktail party without having people look at you funny." Consider, for example, a statute that imposes sentence enhancement when a person "during and in relation to any crime of violence or drug trafficking crime... uses ... a firearm." 4 2 5 In Smith v. United States, the Court relied on the broad dictionary definition of "use" to hold that a defendant "used" a gun, within the meaning of the statute, when he traded it for illegal narcotics. 42 6 In dissent, Justice Scalia invoked the "fundamental principle of statutory construction (and, indeed, of language itself) that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used. ' 4 2 7 Reading the crucial term in the context of the surrounding sentence, Justice Scalia reasoned that the defendant had not "used" a firearm in the sense of the statute: To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, "Do you use a cane?," he is not inquiring whether you have your grandfather's silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of "using a firearm" is to speak of using it for its distinctive purpose, i.e., as 428 a weapon. If textualistjudges consistently apply this contextual approach, their method has the potential to address many of the concerns that might be addressed by the equity of the statute in a more literal regime. If the meaning of words is a function of the way speakers use them in context, 4 2 9 it follows that the identical words may have different meanings when used in different contexts. 4 30 Hence, a literal approach will more often pick up meanings that make little sense of the context in which the legislature used statutory words. More precisely, if legislators use words
424. Johnson v. United States, 120 S. Ct. 1795, 1810 (2000) (Scalia, J., dissenting). 425. 18 U.S.C. 924(c) (1) (1994). 426. 508 U.S. 223, 228-29 (1993). 427. Id. at 241 (Scalia, J., dissenting) (quoting Deal v. United States, 508 U.S. 129, 132 (1993)). 428. Id. at 242. 429. See Fish, supra note 48, at 299; Graft, supra note 48, at 407. 430. Professor Graft offers the following example: One might suppose that the expression "keep off the grass" is sufficiently familiar that we know what it means independent of any situation in which it may be used. In fact, the expression's familiarity probably depends on our imagining a standard situation with which we associate the words-a sign seen on a wellmanicured lawn, say, or the cry of a gardener working on such a lawn while somebody is walking across it. "Keep off the grass" would mean something entirely different if we overheard the expression uttered by a narcotics-counselor, in appropriate circumstances, to a person known to us as a convicted marijuana-
user.
Graft, supra note 48, at 407-08. HeinOnline -- 101 Colum. L. Rev. 110 2001
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to achieve some end, 43 1 a literal approach will yield results that bear little relation to those apparent ends. In Smith, for example, a literal interpretation of "using a firearm" would require a substantial sentence enhancement for using a non-functioning antique musket as a doorstop in a drug den. And proponents of the equity of the statute would argue that their approach is necessary to narrow the statutory meaning to more sensible boundaries. A more contextual approach to textualism alleviates much of this necessity. 432 Focusing on the contextual gloss put upon "using a firearm" in the context of committing a crime, the Smith dissent arrived at a more plausible conclusion-that penalties were to be enhanced only for brandishing a gun in connection with drug trafficking. 433 While this facet of textualism cannot solve all perceived mismatches between contextual meaning and apparent background purpose, it certainly alleviates the standard concern that textualism, untempered by equity, "make [s] a 434 fortress out of the dictionary."
431. Judge Easterbrook has laid heavy emphasis on this point: Words take their meaning from contexts, of which there are many-other words, social and linguistic conventions, the problems the authors were addressing. Texts appeal to communities of listeners, and we use them purposively. The purposes, and so the meaning, will change with context, and over time. Easterbrook, Text, History, and Structure, supra note 62, at 61. 432. This conclusion may supply an alternative rationale for Puffendorf's classic example of equitable interpretation. Referring to a medieval statute that imposed criminal penalties upon anyone who "drew blood in the streets," Puffendorf argued that the statute did not require the jailing of a surgeon who opened the vein of a person felled by a seizure in the street. See United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868) (relying on Puffendorf). If one were to read the statute literally, relieving the surgeon of criminal liability might require equitable interpretation. But a reasonable user might also place different glosses on the phrase "drew blood" in different contexts. In ordinary parlance, it can surely refer to violent piercing of the skin ("the dog drew blood while we were playing") or, indeed, to a medical procedure ("the nurse drew blood during my checkup"). If the relevant statute appears in the Criminal Code, a reasonable user might be expected to use the phrase to describe a violent act. If it appears in the Health Code, one might expect a meaning that governed surgical procedures. 433. Smith, 508 U.S. at 241 (Scalia, J., dissenting); see also United States v. AlvarezSanchez, 511 U.S. 350, 358 (1994) (Thomas, J.) ("In short, it is evident 'from the context in which [the phrase] is used,' that the 'arrest or other detention' of which the subsection speaks must be an 'arrest or other detention' for a violation of federal law." (quoting Deal v. United States, 508 U.S. 129, 132 (1993))); Deal, 508 U.S. at 131-32 (Scalia, J.) ("But of course susceptibility of all of these meanings does not render the word 'conviction,' whenever it is used, ambiguous; all but one of the meanings is ordinarily eliminated by context."). 434. Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (Learned Hand, J.). This also explains why some critics of textualism, who equate it with literalism, misjudge the effects of a textualist approach, properly applied. Consider the following hypothetical described by Professor Eskridge: Scalia, a hotel manager, tells me, his employee, to "gather all the ashtrays in the public areas of the hotel and put them in my office by 2:00 p.m. today," while he is dining. I diligently collect the ashtrays until I come to an elevator bank, where a metal ashtray is bolted onto the wall. Should I rip it off? A pragmatic agent would leave it on the wall, construing "all ashtrays" to exclude those whose HeinOnline -- 101 Colum. L. Rev. 111 2001
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Second, under the reasonable-user approach, textualists readily give effect to terms of art-phrases that acquire specialized meaning through use over time as the shared language of specialized communities (legal, commercial, scientific, etc.). In decoding legal commands, the lawyer's lexicon of course assumes a particular prominence. As Justice Scalia once noted (quoting Justice Jackson): [W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the 435 judicial mind unless otherwise instructed. In a mature legal system, this practice mitigates concerns about preferring textualism to the equity of the statute. Much of the demand for the equity of the statute arose from the fact that general texts cannot anticipate and provide for all contingencies. 43 6 But because terms of art often reflect a long common law or statutory history, their content typically has been worked out in concrete circumstances over time, rather than in the isolation of the legislative chamber. Indeed, in some cases, a term of art may simply suggest a common law framework for judicial decision, further enhancing textualism's capacity for nuance and adaptability in statutory law. 43 7 Nothing about textualism precludes Congress from speaking in legal shorthand-drawing upon established legal terms that have been 438 tested within already functioning legal regimes.
removal would be unduly costly, a judgment call. It is not clear what the new textualist would do. When I have posed this hypothetical in Legislation -classes, some Scalians rip the ashtrays off the wall, and others do not because they consider the textual command "absurd" in those circumstances. Eskridge, Unknown Ideal, supra note 33, at 1549. If one applies a context-sensitive version of textualism, it should be clear that the textualist agent would not rip the ashtrays off the wall. This is not because ripping ashtrays off the wall is bad policy in those circumstances (though it surely is). Rather, no reasonable user of language would use or understand the phrase "gather all the ashtrays from the public spaces," in context, to mean movable and nonmovable ashtrays. If one told a friend at a cocktail party to "gather" ashtrays, it could not reasonably be understood to mean those bolted to the walls. 435. Moskal v. United States, 498 U.S. 103, 121 (1990) (Scalia, J., dissenting) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). 436. See Lieber, supra note 392, at 28-30 (discussing the numerous subsidiary judgments that must go into executing the command, "fetch some soupmeat"). 437. See, e.g., Dir., Office of Workers' Comp. Programs, Dep't of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 126-27 (1995) (Scalia, J.) (reasoning that the phrase "person adversely affected or aggrieved" reflects "a long history in federal administrative law," and that its meaning had been marked out by "the gradual judicial process of inclusion and exclusion" (citations and internal quotations omitted)); Evans v. United States, 504 U.S. 255, 279-84 (1992) (Thomas, J., dissenting) (analyzing common law history to derive meaning of "extortion" in Hobbs Act). 438. See, e.g., Babbitt v. Sweet Home Chapter of Cmties. for a Great Or., 515 U.S. 687, 718 (1995) (Scalia, J., dissenting) ("It is obvious that 'take' [as used in the Endangered Species Act]-a term of art deeply embedded in the statutory and common law concerning wildlife-describes a class of acts (not omissions) done directly and HeinOnline -- 101 Colum. L. Rev. 112 2001
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Third, a closely related consideration permits textualists to draw upon settled background conventions of the legal system, which judges can use to fill in gaps left by the text alone. Using such extra-textual conventions, provided that they are firmly established, does not offend textualist premises. A reasonable user of language needs to identify the "assumptions shared by the speakers and the intended audience. '43 9 If I invite a colleague to meet me for lunch "at I o'clock," it would not violate background conventions for that person to be a few minutes late. If a judge informs counsel that a hearing will commence "at 1 o'clock," background conventions leave less leeway. Similar considerations apply to legal texts. Interpreters must apply the same set of assumptions that any "reasonably diligent lawyer" would bring to a statute in context. 440 In a developed legal system, this premise gives judges a way to supply many terms that, in a nascent system, might owe their existence to the equity of the statute. In a new legal system, for example, interpreters might rely on the equity of the statute to develop defenses to otherwise unqualified criminal or tort statutes. 441 Modern legislatures, however, pass such statutes against deeply embedded "norms of interpretation and defense," which frame the social understanding of such statutes, just as rules of grammar and diction do. 442 Judge Easterbrook has recently emphasized that this is why textualists should not hesitate to apply the common law defense of justification to seemingly unqualified statutory crimes. 4 43 Even if a murder statute assigns criminal liability to anyone who "willfully take[s] the life of another," no textualist would condemn a "police officer who shot and killed a terrorist just about to hurl a bomb into a crowd. '44 4 Or, to take a famous example from the U.S. Reports, no textualist would sustain
intentionally (not indirectly and by accident) to particular animals (not populations of animals)."); Moskal, 498 U.S. at 120 (1990) (Scalia, J., dissenting) (finding the phrase "falsely made" to be an established term of art synonymous with forgery). 439. Easterbrook, Legislative History, supra note 67, at 443. 440. O'Gilvie v. United States, 519 U.S. 79, 98 (1996) (Scalia, J.,dissenting). For example, the Court routinely presumes "that Congress legislates with knowledge of our basic rules of statutory construction." McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496 (1991); see also Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979) (finding it "not only appropriate but also realistic to presume that Congress was thoroughly familiar with ... unusually important precedents," and that Congress "expect[s] its enactment[s] to be interpreted in conformity with them"). 441. Cf. Richard A. Epstein, A Common Lawyer Looks at Constitutional Interpretation, 72 B.U. L. Rev. 699, 706-12 (1992) (discussing use of analogical reasoning and moral theory in the interpretation of Roman tort law dealing with intentional killing). 442. Frank H. Easterbrook, The Case of the Speluncean Explorers: Revisited, 112 Harv. L. Rev. 1913, 1914 (1999) [hereinafter Easterbrook, Speluncean Explorers]. 443. Id. at 1913 ("For thousands of years, and in many jurisdictions, criminal statutes have been understood to operate only when the acts were unjustified."). 444. Id. In a recent opinion for the Court, Justice Scalia similarly endorsed the background interpretive rule that "[c]riminal prohibitions do not generally apply to reasonable enforcement actions by officers of the law." Brogan v. United States, 522 U.S. 398, 406 (1998). HeinOnline -- 101 Colum. L. Rev. 113 2001
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a conviction for willful interference with the mail if a police officer arrested a murderous mail carrier in the midst of his postal route. 445 Even if a statute does not spell out every detail, textualists will interpret that statute "according to the legal system's accepted procedures, evidentiary 446 rules, burdens of persuasion-and defenses." Such examples could easily be multiplied. Textualists, for instance, accept that Congress passes federal tort statutes (such as section 1983) against the backdrop of common law rules of tort law, 4 4 7 that it enacts criminal statutes in light of historically applicable norms concerning mental states, 448 that statutes of limitations must be read against the embedded practice of equitable tolling, 449 that federal statutes are subject to traditional judicial practices concerning the burden of production and persuasion, 450 and that all statutes are now enacted against the venerable maxim "de minimis non curat lex." 451 Once again, it is important to em445. See United States v. Kirby, 74 U.S. (7 Wall.) 482, 485-87 (1868). In Kirby, the Court itself invoked equitable interpretation to relieve the constable of liability. See id. at 487 ("The reason of the law in such cases should prevail over its letter."). 446. Easterbrook, Speluncean Explorers, supra note 442, at 1913. 447. See Heck v. Humphrey, 512 U.S. 477, 486 (1994) (Scalia, J.) ("[T]he hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution."). 448. See, e.g., Brogan, 522 U.S. at 406 (Scalia, J.) (describing "common-law requirement of mens rea" as a "background interpretive principle of general application"); Staples v. United States, 511 U.S. 600, 616 (1994) (Thomas, J.) ("Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute ... dispens[es] with mens rea.... [T]he cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties .... not imprisonment in the state penitentiary.") 449. The Court's most consistent textualists, Justices Scalia and Thomas, have joined opinions acknowledging the background understanding that federal statutes of limitations are subject to common law rules of equitable tolling. E.g., Rotella v. Wood, 120 S. Ct. 1075, 1084 (2000) (opinion joined by Scalia & Thomas, JJ.) (noting the settled "understanding that federal statutes of limitations are generally subject to equitable principles of tolling"); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990) (opinion joined by Scalia, J.) (emphasizing that "[t]ime requirements in lawsuits between private litigants are customarily subject to 'equitable tolling"'); Hallstrom v. Tillamook County, 493 U.S. 20, 27 (1989) (opinion joined by Scalia, J.) ("The running of such statutes is traditionally subject to equitable tolling."). That presumption, of course, ceases to control if there are persuasive indications to the contrary in the statute. E.g., United States v. Beggerly, 524 U.S. 38, 48-49 (1998) (opinion joined by Scalia & Thomas, JJ.) (relying on the fact that the statute has an explicit tolling provision); United States v. Brockamp, 519 U.S. 347, 350-52 (1997) (opinion joined by Scalia & Thomas, JJ.) (finding the structure of the statute inconsistent with equitable tolling). 450. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 514 (1993) (Scalia, J.) (holding in relation to Title VII that "[w]e may, according to traditional practice, establish certain modes and orders of proof, including an initial rebuttable presumption of the sort we described earlier in this opinion"). 451. Wis. Dep't of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992) (Scalia, J.) ("[T]he venerable maxim de minimis non curat lex ('the law cares not for trifles') HeinOnline -- 101 Colum. L. Rev. 114 2001
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phasize that the "reasonable user" approach will not necessarily fill all the lacunae or repair all the oddities left by generally worded statutes. Textu45 2 alists focus on established background norms of general applicability, and their approach could never replicate the case-by-case discretion afforded by the equity of the statute. Still, it is important to emphasize that textualism, untempered by equity, does not confine judges to the four comers of the text (nor could it under the assumptions of modem language theory shared by contemporary textualists). It would be a caricature to suggest that textualism requires criminal law without its defenses, statutes of limitations without equitable tolling, and the like. Modern legislatures pass statutes in a mature legal system with a whole host of off-therack understandings that achieve what once may have been left to the 453 equity of the statute. C. Absurd Results and Rationality Review In narrow circumstances, textualists are willing to apply something other than the most natural meaning of a statute if necessary to avoid "a patent absurdity."4 54 This practice requires careful explanation because it provides a small measure of flexibility, but at the same time subjects textualists to the charge that there is no principled difference between their (narrow) absurdity doctrine and more robust forms of strong purposivism or equitable interpretation. Why should this be so? Absurdis part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept."). 452. See Brogan, 522 U.S. at 406 (distinguishing "generally applicable, background principles of assumed legislative intent" from "case-by-case exceptions" to criminal statutes). 453. Before leaving the discussion of conventions, it is important to explain why textualists do not interpret statutes in light of the once-established convention of strong purposivism. If the Holy Trinity Church Court long ago entrenched the "familiar rule" that federal judges should enforce the reason or spirit of a statute, rather than its letter, Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892), textualists might assume that all statutes are enacted against that background interpretive convention. Textualists, however, do not apply background interpretive conventions that contradict structural constitutional inferences. To take another textualist principle-the refusal to give authoritative weight to legislative history-one might argue that the longstanding practice of relying on legislative history gave rise to reasonable legislative expectations that courts would use it for purposes of interpretation. See William N. Eskridge, Jr. &John Ferejohn, Politics, Interpretation, and the Rule of Law, in Nomos XXXVI: The Rule of Law 265, 273 (Ian Shapiro ed., 1994). Yet textualists reject the authority of legislative history, among other reasons, because reliance on such material creates an unconstitutional delegation of law elaboration authority from Congress to the legislators or committees who create the legislative history. See Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 279-80 (1996) (Scalia, J., concurring in part and concurring in the judgment). By the same token, even if the norm of strong purposivism reflects a deeply embedded interpretive convention, textualists would reject that practice if it conflicts with background constitutional principles, such as the separation of lawmaking from judging and the requirements of bicameralism and presentment. 454. INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring in the judgment). HeinOnline -- 101 Colum. L. Rev. 115 2001
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ity cannot be defined in the abstract. Rather, absurdity is conventionally understood to be an extreme departure from widely accepted social values in a given interpretive context. 455 If textualists are willing to depart from a clear statutory text when its application conflicts with the background values of society at large, why should they not also vary the same text when it would otherwise conflict with the background values (or purposes) that apparently inspired the legislature to pass the statute in question? Given that textualists apply the doctrine of absurdity infrequently, it is difficult to distill a single definitive textualist explanation of that doctrine. Still, at least one textualist account of the absurdity doctrine seeks to draw a principled line between absurdity and the more discretionary authority associated with strong purposivism or the equity of the statute. First, Justice Scalia limits the absurdity doctrine to cases in which the statute will bear the plausible alternative meaning required to avoid an absurd result. 456 Second, he has sought to limit the doctrine to absurdities ''457 Imso extreme that they almost certainly reflect "scrivener's errors. portantly, in at least some cases he seems to have anchored the second limitation to instances in which the more natural textual meaning would 45 8 pose serious constitutional questions under the rational-basis test. 459 Justice Scalia's concurrence in Green v. Bock Laundry Machine Co. illustrates both points. Bock Laundry turned on Rule 609(a) (1) of the Federal Rules of Evidence, which in relevant part allows the impeachment of a witness's credibility using specified categories of criminal convictions, but only if "the court determines that the probative value of ad460 mitting this evidence outweighs its prejudicial effect to the defendant." The principal statutory question in Bock Laundry was whether "defendant" should be read to include both civil and criminal defendants, or should be limited to criminal defendants. 461 Reading defendant broadly to include the civil context would create an asymmetrical benefit favoring civil defendants over civil plaintiffs, because such a defendant could never be
455. Hopkins, supra note 227, at 692 (describing "absurdity" to mean "any extreme departure from commonly accepted principles of morality, philosophy, politics, or convenience"). 456. E.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 529 (1989) (Scalia, J., concurring in the judgment) (adding a qualification to a term only when it "does not give the word a meaning... it simply will not bear"). 457. E.g., Union Bank v. Wolas, 502 U.S. 151, 163 (1991) (Scalia, J., concurring) ("Since there was here no contention of a 'scrivener's error' producing an absurd result, the plain text of the statute should have made this litigation unnecessary and unmaintainable."); Scalia, Matter of Interpretation, supra note 63, at 20 ("I acknowledge an interpretive doctrine of what the old writers call lapsus linguae (slip of the tongue), and what our modern cases call 'scrivener's error,' where on the very face of the statute it is clear... that a mistake of expression (rather than of legislative wisdom) has been made."). 458. See supra note 301 (discussing rational-basis test). 459. 490 U.S. at 527-30. 460. Id. at 509 (quoting Fed. R. Evid. 609(a)(1)) (emphasis added). 461. Id. at 509-11. HeinOnline -- 101 Colum. L. Rev. 116 2001
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prejudiced by introducing impeachment evidence against the plaintiffs witnesses. Justice Scalia's separate opinion read the rule narrowly, however, to require prejudice-balancing only in cases involving criminal defendants.
462
Although acknowledging that the most natural use of "de-
fendant" includes both civil and criminal defendants, Justice Scalia reasoned that such an interpretation "produces an absurd, and perhaps unconstitutional, result. "463 He concluded that "[t]he word 'defendant' in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs." 464 In other words, any attempt by Congress to distinguish between the two would raise a serious constitutional question under the rational-basis test. But because the law often gives "special protection to defendants in criminal cases," Justice Scalia believed that there was a rational basis for asymmetrical prejudice-weighing in criminal prosecutions. 465 Although equating "defendant" with "criminal defendant" was not the most natural reading of the text, Justice Scalia emphasized that
doing so would "not give the word a meaning . . . it simply will not bear."466 Rather, "[t] he qualification.., is one that could understandably have been omitted by inadvertence-and sometimes is omitted in nor46 7 mal conversation ('I believe strongly in defendants' rights')." Whether or not one agrees with this particular application of the absurdity doctrine, 468 Bock Laundry illustrates an important limiting rationale for textualists' application of that doctrine. The ultimate interpretation must reflect a plausible social understanding of the language at issue, and the judge cannot reject a more probable understanding to serve the open-ended objectives of the equity of the statute. Rather, the most natural reading of the statute must be so lacking in plausible justifications that it presses against the limits of established constitutional norms of rationality. And, in keeping with the forgiving nature of the rational-basis test, textualists typically find that the most natural reading of a statute plausibly reflects some (hypothesized) rational justification. 469 Hence, in
462. Id. at 527-30. 463. Id. at 527. 464. Id. at 528. 465. Id. at 529. 466. Id. 467. Id. 468. The law also assigns civil defendants special protections, for example, by assigning the plaintiff the burden of persuasion. Edward W. Cleary, McCormick on Evidence 949 (3d ed. 1984) ("The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion."). 469. For example, in Clinton v. City of New York, 524 U.S. 417 (1998), the Court considered whether municipalities, businesses, and labor unions could invoke a jurisdictional statute authorizing certain "individual [s]" to seek expedited appellate review of the constitutionality of the Line Item Veto Act, 2 U.S.C. 691, 692(a)(1) (Supp. IV 1998). The Court held that reading the statute to permit such review by natural, but not
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contrast with the equity of the statute, the absurdity doctrine does not assume that "each legislature enacts a purpose, ... which the courts must
then perpetuate, assuring that it is fully achieved but never overshot by expanding or ignoring the statutory language as changing circumstances
require." Rather, the absurdity doctrine provides an important, albeit limited, safety valve. It enforces the most natural meaning of a statute as long as it remains within the limits of Congress's constitutional authority. But when the most natural meaning of a statute seriously threatens to exceed those limits, textualists will seek a permissible alternative interpretation that avoids that danger. 471 In that sense, the absurdity doctrine becomes simply another application of the traditional practice (discussed below),
corporate, persons would "produce an absurd and unjust result." 524 U.S. at 429 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 574 (1982)). In his dissenting opinion, Justice Scalia reasoned that an "individual," in context, could not refer to corporations because, inter alia, another provision in the Act had explicitly used "businesses and associations" and "individuals" to describe distinct categories. Id. at 454 (Scalia, J., dissenting) (quoting 2 U.S.C. 691e(9)(B)(iii)). In rejecting the Court's conclusion concerning absurdity, Justice Scalia emphasized that Congress might conclude "that individuals will suffer more seriously from delay in the receipt of 'vetoed' benefits or tax savings than corporations will, and therefore accord[ I individuals (but not corporations) expedited review." Id. at 455. He added that "[i]t may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law." Id. Similar reasoning appears in many opinions written or joined by textualist Justices rejecting claims of absurdity. See, e.g., Chapman v. United States, 500 U.S. 453, 465 (1991) (opinion joined by Scalia, J.) ("We find that Congress had a rational basis for its choice of penalties for LSD distribution."); Hallstrom v. Tillamook County, 493 U.S. 20, 30 (1989) (opinion joined by Scalia, J.) (noting that certain "procedural anomalies" produced by a "strict construction" of a statutory notice provision "may be frustrating to the plaintiff," but are not "irrational"); United States v. Johnson, 481 U.S. 681, 699-700 (1987) (Scalia, J., dissenting) (suggesting plausible hypothetical reasons why Congress would have enacted the Federal Tort Claims Act without exempting government from liability for injuries related to military service). 470. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part and dissenting in part). 471. To be sure, there is some evidence that textualists (or at least fellow travelers) accept an alternative (and more openly intentionalist) justification for the absurdity doctrine. For example, in an opinion concurring in the judgment in Pub. Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989), Justice Kennedy urged the Court to apply the doctrine with self-discipline by limiting the exception to situations where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result, and where the alleged absurdity is so clear as to be obvious to most anyone. Id. at 470-71 (citation omitted). Indeed, this idea arguably finds some support injustice Scalia's repeated insistence that an absurdity must reflect a "scrivener's error." See supra note 457. And it surely reflects the Court's traditional basis for invoking the absurdity doctrine. See supra note 403 (collecting cases). This section does not seek to resolve the historical question of how the Court, in general, or textualists, in particular, actually apply the doctrine. Rather, it is meant only to highlight the textualists' most plausible justification for invoking the absurdity doctrine-to avoid irrational statutory results. HeinOnline -- 101 Colum. L. Rev. 118 2001
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requiring the Court to construe statutes, where possible, to avoid substan4 72 tial constitutional questions. D. JudicialReview, the Canon of Avoidance, and Clear Statement Rules A final consideration requires brief mention. In contrast with the English system in which the equity of the statute arose and flourished, the structure of government in the United States subjects statutes to the constraints of a written constitution, enforced through the institution ofjudicial review. 4 7 3 Hence, federal judges may not implement statutory provisions that fail to conform to the established principles of equal protection, 474 due process, 475 and a host of other guarantees that society has specified as higher law through constitutionally-prescribed processes. I do not mean to suggest, however, that the Framers adopted these elabo476 rate guarantees with the purpose of replacing the equity of the statute.
472. See infra Part IV.D. 473. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); see also The Federalist No. 78, supra note 9, at 468 (Alexander Hamilton) ("[W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former."). The availability of judicial review in England involves complex historical questions. In Dr. Bonham's Case, 77 Eng. Rep. 638, 652 (KB. 1609), Lord Coke asserted that "in many Cases, the Common Law will controll Acts of Parliament, and sometimes adjudge them to be utterly void: For when an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controll it and adjudge such Act to be void." Id. at 118. Although Coke purported to rest this conclusion on an existing tradition ofjudicial review in England, id., some modem historians have raised substantial questions about Coke's claims. See, e.g., Theodore F.T. Plucknett, Bonham's Case and Judicial Review, 40 Harv. L. Rev. 30, 35-48 (1926) (arguing that Coke over-read the precedents). Indeed, in 1765, Blackstone maintained that "the examples usually alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it . . . ." 1 Blackstone, supra note 9, at *91. Although the historical issues surrounding Coke's position are beyond the scope of this paper, no one suggests that English judicial review was ever as pervasive or routine as the American practice under Marbury. Rather, the historical debate surrounding Bonham's Case suggests that any such practice was, at best, sporadic and uncertain. See Plucknett, supra, at 35-48. 474. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (invalidating racial segregation in schools); Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (same). 475. See, e.g., BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996) (holding that a punitive damages award was grossly excessive and thus violated due process); United States v. James Daniel Good Real Prop., 510 U.S. 43, 46 (1993) (holding that absent exigent circumstances, the Due Process Clause of the Fifth Amendment prohibits seizure of real property in a civil forfeiture action without prior notice and an opportunity to be heard). 476. Such an argument would be similar to the administrative law principle that an organic statute's specific and elaborate remedial scheme impliedly precludes other, more generic remedies. See, e.g., United States v. Fausto, 484 U.S. 439, 455 (1988) (comprehensive nature of Civil Service Reform Act precluded judicial review of adverse personnel action under Back Pay Act); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 352-53 (1984) (elaborate structure of Agricultural Marketing Agreement Act implied congressional intent to preclude consumer suits against state-determined "market orders"). HeinOnline -- 101 Colum. L. Rev. 119 2001
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Nor do I suggest that those guarantees, in practice, replicate the precise forms of relief available under the equity of the statute. 477 Rather, the point is simply that if statutes in our constitutional system are untempered by the external moral judgments of equity, they (unlike their English counterparts) are nonetheless tempered by the external constraints codified in a written Constitution. This reality substantially diminishes the potential for injustice from interpretive methods that, in the absence of constitutional infirmity, require strict compliance with the 478
clear terms of a statutory text.
In two related contexts, moreover, textualists rely heavily on constitutional norms not only to conductjudicial review, but also to inform their interpretation of statutes. The first involves the Court's longstanding principle that judges must construe statutes, where possible, to avoid grave or serious doubts as to their constitutionality. 479 The Court has explained that the so-called "canon of avoidance" "not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like th[e] Court, is bound by and swears an oath to uphold the Constitution. ' 48 0 In its interpretation of statutes, therefore, the Court "will ... not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power 48 1
constitutionally forbidden it."
477. Indeed, as Professor Monaghan has shown, our Constitution does not address all the questions of justice that society might wish to safeguard at any given time. Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 355-60 (1981). 478. Roscoe Pound made a similar point at the beginning of the last century: [T]he rule that statutes in derogation of common right are to be construed strictly has some excuse in England where there are no constitutional restrictions. There it is really another form of stating Blackstone's tenth rule, that interpretations which produce collaterally absurd or mischievous consequences are to be avoided. In the United States it means that interpretations which would make an act unconstitutional are to be avoided, or else it is equivalent to Blackstone's tenth rule. Pound, Spurious Interpretation, supra note 47, at 387 (footnote omitted). 479. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); Jean v. Nelson, 472 U.S. 846, 854 (1985) (advising courts to decline to decide constitutional issues unless "avoid[ing] a constitutional question" would "press statutory construction 'to the point of disingenuous evasion'" (quoting United States v. Locke, 471 U.S. 84, 96 (1985))); NLRB v. Catholic Bishop, 440 U.S. 490, 507 (1979) ("[I]n the absence of a clear expression of Congress' intent ... we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses."); Crowell v. Benson, 285 U.S. 22, 62 (1932) ("When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."). 480. DeBartolo, 485 U.S. at 575. 481. Id.
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The Court's leading textualists enthusiastically embrace the canon of avoidance. 4 82 For example, in a recent opinion concurring in the judgment in Feltner v. Columbia Pictures Television, Inc., Justice Scalia applied the canon of avoidance to conclude that the Copyright Act of 1976 authorizes jury trials in copyright infringement actions. 48 3 Even though the statute authorizes the award of such damages "as the court considers just,"484 Justice Scalia found that this language did not preclude a jury trial, thereby avoiding a serious Seventh Amendment question. 485 Although conceding that "court" may mean "[t]he judge or judges" in "common legal parlance," Scalia relied on legal dictionaries and case law to show that the term sometimes "also has a broader meaning, which includes both judge and jury."4 8 6 In adopting the broader (though less natural) definition, Scalia emphasized that "[t]he doctrine of constitutional doubt does not require that the problem-avoiding construction be the preferable one," for that "would deprive the doctrine of all function. ' 4 8 7 Rather, the canon of avoidance is available whenever a statute is susceptible of the problem-avoiding interpretation. 488 As Feltner illustrates, textualists can use the canon of avoidance to steer statutes away from unconstitutional results, even in cases in which the Court might not ultimately find a statute unconstitutional were it to reach the question. A second practice of this kind concerns the Court's recent use of "clear statement rules," which require Congress to speak unambiguously when it seeks to effect a result that, although constitutional, would under482. See, e.g., Dep't of Commerce v. United States House of Representatives, 525 U.S. 316, 346 (1998) (Scalia, J., concurring in part) ("I think it must be acknowledged that the statutory intent to permit use of sampling for apportionment purposes [under the Census Act] is at least not clear. In these circumstances, it is our practice to construe the text in such fashion as to avoid serious constitutional doubt."); Lopez v. Monterey County, 525 U.S. 266, 293 (1998) (Thomas, J., dissenting) ("[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." (quoting United States v. Del. & Hudson Co., 213 U.S. 366, 408 (1909))); FEC v. Akins, 524 U.S. 11, 32 (1998) (Scalia, J., dissenting) ("[A] narrower reading of 'party aggrieved' [in the Federal Election Campaign Act] is supported by the doctrine of constitutional doubt, which counsels us to interpret statutes, if possible, in such fashion as to avoid grave constitutional questions."). 483. 523 U.S. 340, 356 (1998) (Scalia, J., concurring in the judgment). 484. 17 U.S.C. 504(c) (1994). 485. Feltner, 523 U.S. at 356. 486. Id. Justice Scalia relied on Webster's New International Dictionary 611 (2d ed. 1949) (def. 10b), Black's Law Dictionary 318 (5th ed. 1979), and Lorillard v. Pons, 434 U.S. 575 (1978). 487. Feltner, 523 U.S. at 358 (quoting Almendarez-Torres v. United States, 523 U.S. 224, 270 (1998) (Scalia, J., dissenting)). 488. Id.; see also Almendarez-Torres, 523 U.S. at 270 (Scalia, J., dissenting) ("[The doctrine of constitutional doubt comes into play when the statute is 'susceptible of' the problem-avoiding interpretation-when that interpretation is reasonable, though not necessarily the best." (citation omitted)). HeinOnline -- 101 Colum. L. Rev. 121 2001
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mine a constitutionally derived value. 48 9 The most common application of this approach relates to federalism. Even in areas in which Congress has the power to abrogate state sovereign immunity, 490 it must state its intention to do so clearly on the face of the statute. 491 Similarly, the Court has refused to interpret ambiguous statutes to limit the fundamental state prerogatives through which "a State defines itself as a sovereign." 492 Conceding that "Congress may legislate in areas traditionally regulated by the States," the Court emphasized that it would not lightly assume that Congress used that authority to alter the "usual constitutional balance" between federal and state power. 49 3 Although federalism ca489. See, e.g., William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593, 596-98 (1992) [hereinafter Eskridge & Frickey, Clear Statement Rules] (discussing recent Courts' use of constitutionally inspired clear statement rules); Bradford C. Mank, Textualism's Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 Ky. L.J. 527, 551 (1998) (discussing clear statement canons). 490. The Court has made clear that Congress may not, under the Commerce Power, constitutionally subject nonconsenting states to suits by individuals. E.g., Alden v. Maine, 527 U.S. 706, 730-31 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996). Congress, however, retains the authority to subject states to individual actions pursuant to Section 5 of the Fourteenth Amendment. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
491. The Court has thus explained: To temper Congress' acknowledged powers of abrogation with due concern for the Eleventh Amendment's role as an essential component of our constitutional structure, we have applied a simple but stringent test: "Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute." Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). 492. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). In Gregory, the Court held that a provision of the Missouri Constitution requiring mandatory retirement of state judges at age seventy did not violate the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. 623(a), 631(a) (1994) (prohibiting employment discrimination against any person at least 40 years old "because of such individual's age"). 493. Gregory, 501 U.S. at 460. Specifically, the Court held that "[c]ongressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers." Id. The Court found it ambiguous whether a judge fell within the ADEA's exemption for "an appointee on the policymaking level," 29 U.S.C. 630(0, and gave the state the benefit of the doubt. As the Court thus explained: "[A]ppointee at [sic] the policymaking level," particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not "employees" would seem the most efficient phrasing. But in this case we are not looking for a plain statement thatjudges are excluded. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly .... Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state public officials, "appointee on the policymaking level" is
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nons provide the most salient examples of this "clear statement" ap495 proach, 49 4 it has gained traction in other areas as well. Although clear statement rules sometimes require judges to reject the most natural reading of a statute in favor of a plausible but less con496 ventional interpretation, textualists have not hesitated to apply them. For example, Justice Scalia applied a strong version of the federalism canon in his opinion for the Court in BFP v. Resolution Trust Corporation, which addressed a provision of the Bankruptcy Code allowing creditors to void certain transfers of property by insolvent debtors if the debtor did not receive "reasonably equivalent value" in the transaction. 497 The precise issue was what "reasonably equivalent value" meant in the context of a foreclosure sale of the debtor's property. Rather than requiring rough market equivalence (as had several courts of appeals) ,498 Justice Scalia's opinion held that if the foreclosure followed applicable state procedures,
sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not. Gregory, 501 U.S. at 467. 494. For further applications of the federalism canon, see, for example, Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) (applying clear statement rule to hold that states are not "persons" within the meaning of 42 U.S.C. 1983); South Dakota v. Dole, 483 U.S. 203, 207 (1987) (requiring clear statement of congressional intent to impose condition on grant of federal monies to states); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (same). 495. For example, to serve the due process interest in fair notice, the Court presumes that new statutory liability is prospective, unless the statute clearly indicates the contrary. See, e.g.,Johnson v. United States, 529 U.S. 694, 736 (2000) ("Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests."); Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994) ("Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent."). The Court also presumes that judicial review of agency action is available, unless there is "clear and convincing" evidence of a legislative intent to preclude judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967); see also Webster v. Doe, 486 U.S. 592, 603 (1988) ("[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear."); Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (finding no "clear and convincing evidence" of Congress's intent to prohibit judicial review). And although the federal government may waive its own sovereign immunity, such waivers must be "unequivocally expressed." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990). For a full catalogue of the Court's recent applications of the clear statement rule, see Eskridge & Frickey, Clear Statement Rules, supra note 489, at 598-629. 496. See, e.g., United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992) (Scalia, J.) (requiring clear statement of intent to waive federal sovereign immunity); Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., concurring) (stating that statutes are presumptively prospective in application unless the statute clearly indicates the contrary); Dellmuth, 491 U.S. at 233 (Scalia, J., concurring) (stressing his understanding that Court's reasoning does not preclude Congress's ability to eliminate sovereign immunity if statutory text "clearly subjects" the state to suit for damages). 497. 511 U.S. 531, 544-45 (1994); 11 U.S.C. 548(a)(2) (1994). For an excellent analysis of this case and its implications for textualism, see Eskridge, Unknown Ideal, supra note 33, at 1543-46. 498. BFP, 511 U.S. at 536 (discussing circuit court authority). HeinOnline -- 101 Colum. L. Rev. 123 2001
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text of the statute, rather than in the legislative history. 50 2 As with the canon of avoidance, the commitment to clear statement rules may offer a means of tempering a strict textualist approach. Both the canon of avoidance and the clear statement rules have, however, drawn considerable criticism from scholars. With respect to the canon of avoidance, for example, Frederick Schauer has argued that "it is by no means clear that a strained interpretation of a federal statute that avoids a constitutional question is any less a judicial intrusion than the judicial invalidation on constitutional grounds of a less strained interpretation of the same statute." 50 3 If textualists believe, moreover, that statutes mean what a reasonable person would conventionally understand them to mean, then applying a less natural (though still plausible) interpretation is arguably unfaithful to the legislative instructions contained in the statute. In the case of clear statement rules, moreover, commentators have questioned whether the Court, in general, and textualists, in particu499. Id. at 545. 500. Id. at 544, 544-45 n.8. 501. Eskridge, Unknown Ideal, supra note 33, at 1544-45. 502. See Mank, supra note 489, at 551-52; see also Landgraf v. USI Film Prods., 511 U.S. 244, 287-88 (1994) (Scalia,J.,joined by Kennedy & Thomas,JJ., concurring) (arguing that the presumption against statutory retroactivity can be overcome only by an express statement in the statute itself); Dellmuth v. Muth, 491 U.S. 223, 233 (1989) (Scalia, J., concurring) (maintaining that congressional abrogation of state sovereign immunity requires a "statutory text that clearly subjects States to suit for monetary damages"). 503. Frederick Schauer, Ashwander Revisited, 1995 Sup. Ct. Rev. 71, 74. Jerry Mashaw has used game theory to show that judicial review may do less violence to legislative prerogatives because it "returns the legislature to the status quo ante," and increases the likelihood of constitutional policymaking by the legislature. Jerry L. Mashaw, Greed, Chaos, and Governance 105 (1997). The canon of avoidance, in contrast, leaves a judicially crafted alternative statute in place, which may satisfy one of the three actors (the House, Senate, or President) whose assent is necessary to amend the statute in light of the Court's decision. Id. at 102-03. Or as Judge Posner has put it: Congress's practical ability to overrule ajudicial decision misconstruing one of its statutes, given all the other matters pressing for its attention, is less today than ever before, and probably was never very great. The practical effect of interpreting statutes to avoid raising constitutional questions is therefore to enlarge the already vast reach of constitutional prohibition beyond even the most extravagant modern interpretation of the Constitution-to create a judge-made constitutional "penumbra" . . .. Posner, Statutory Interpretation, supra note 50, at 816. HeinOnline -- 101 Colum. L. Rev. 124 2001
"reasonably equivalent value" was whatever the foreclosure sale yielded. 499 Invoking the Court's federalism canon, Justice Scalia reasoned that the statutory language simply did not evince a "clear and manifest" intent to "displace traditional state regulation" of foreclosure sales. 5 0 0 As Professor Eskridge has shown, BFPreflects a very strong application of the clear statement rule, and is indicative of an aggressive textualist commitment to that interpretive approach. 50 1 Indeed, if anything, textualists tend to be stricter in their application of clear statement rules, because they require the expression of clear intent to be derived from the
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5 0
lar, have been strategic in picking and choosing which constitutional val4
ues to emphasize.
Full consideration of the canon of avoidance and clear statement rules is a matter for another day. For my purposes, it suffices to say that both presently mitigate the textualists' strict focus on the conventional meaning of the enacted text. But it is unclear how comfortably they fit with the most basic textualist assumptions. At least some textualists or their fellow travelers have recognized the necessity for restrained application of such tools of construction.5 0 5 And, to the extent that either the canon of avoidance or any particular clear statement rule is well setfled,50 6 its application would perhaps follow from the textualists' practice of reading statutes in light of established background conventions. As Justice Scalia has explained, once such rules of construction "have been long indulged, they acquire a sort of prescriptive validity, since the legislature presumably has them in mind when it chooses its language." 50 7 In any case, when judges promote constitutional values by shading statutory meaning (within a range that the statutory language will bear), their action surely has a firmer basis than the equity of the statute, which draws upon more open-ended conceptions of external moral principles. Still,
504. See, e.g., Eskridge, Unknown Ideal, supra note 33, at 1545-46 (noting that if textualists develop clear statement rules "common law style," then "as new canons are created or strengthened and old ones narrowed as Supreme Court composition changes, the honest textualist [will] become[ ] just as unpredictable as, and may even come to resemble, her doppelganger the willful judge"); Mank, supra note 489, at 527 ("While canons of construction can be useful in statutory interpretation, textualistjudges selectively prefer clear-statement rules that favor states' rights and private economic interests, and usually narrow a statute's meaning."). 505. Justice Kennedy has written: [The canon of avoidance] should not be given too broad a scope lest a whole new range of Government action be proscribed by interpretive shadows cast by constitutional provisions that might or might not invalidate it. The fact that a particular application of the clear terms of a statute might be unconstitutional does not provide us with a justification for ignoring the plain meaning of the statute. If that were permissible, then the power of judicial review of legislation could be made unnecessary, for whenever the application of a statute would have potential inconsistency with the Constitution, we could merely opine that the statute did not cover the conduct in question because it would be discomforting or even absurd to think that Congress intended to act in an unconstitutional manner. Pub. Citizen v. United States Dep't of Justice, 491 U.S. 440, 481 (1989) (Kennedy, J., concurring in the judgment). 506. The canon of avoidance has been traced back to the time of John Marshall. See Ex Parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (Marshall, Circuit Justice) ("[I]f the case may be determined on other points, ajust respect for the legislature requires, that the obligation of its laws should not be unnecessarily and wantonly assailed."). At least some clear statement rules also have an ancient pedigree. For example, the presumption against retroactive application of new liability goes back to the early days of the nation. See Landgraf,511 U.S. at 270. 507. Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 583 (1990). HeinOnline -- 101 Colum. L. Rev. 125 2001
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to the extent that textualists create new substantive canons on an ad hoc basis, there is room to demand further justification for the textualists' 5 8 0 selection and application of particular clear statement rules. The remarks in this Part are not meant to suggest that, at the end of the day, textualism will prove to be as flexible or purposive as the equity of the statute. It will not. Rather, they are meant only to show that it is not as inflexible, literal, and insensitive to nuance and context as some of its critics have suggested. Still, because Congress will not be able to foresee all contingencies that arise under a statute, even the contextual meanings of words and phrases may often produce results that are overinclusive or underinclusive in relation to the statute's apparent background purposes. And textualism, far more than the alternatives, will often tell us that this is a cost we must bear. The important point is this: If the systemic values derived from the rule of law, bicameralism and presentment, and representative democracy direct us to the faithful agent theory, then the cost of seemingly imperfect results in individual cases cannot-consistent with the constitutional structure-be avoided by resort to the equity of the statute.
CONCLUSION
The problem of atextual interpretation is more complex than the usual combatants-the strong purposivists and the new textualists-acknowledge. Any well-grounded conclusion about interpretive practice must consider both sides of the relationship between lawmaker and interpreter. Yet proponents of the traditional philosophies have assumed uncritically that the appropriate judicial posture in matters of statutory interpretation is that of the faithful agent, and that the interpretive debate should focus exclusively on the most accurate way to read the legislature's instructions. The historical case for the equity of the statute must be taken seriously, given that doctrine's deep roots in English history and its acceptance by at least some early Americans. The question raised by the doctrine, therefore, is a plausible one. But given the structural context in which the doctrine flourished in England, it is difficult to conclude that
508. Some have suggested that there is a special reason for the Court to emphasize clear statement rules that protect the values implicit in the constitutional structure. At least since the entrenchment of the modern administrative state, the Court has often hesitated to enforce structural constitutional commitments directly by invalidating acts of Congress. See Eskridge & Frickey, Clear Statement Rules, supra note 489, at 630-31. Hence, some commentators have argued that to compensate for the underenforcement of structural constitutional norms, the Court uses structurally inspired canons of interpretation as a constitutional doctrine of second best; instead of invalidating acts of Congress, it interprets statutory phrases to promote the values of federalism and the separation of powers. See id. at 631-32. Without endorsing the underenforcement of structural norms, I have elsewhere defended the practice of using structurally inspired canons to interpret open-ended federal statutes establishing governmental institutions. Manning, Structure and Deference, supra note 232, at 632-37.
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the equity of the statute doctrine fits comfortably within the very different American structural context. And the historical record of original understanding is mixed at best; indeed, when the Supreme Court assimilated the lessons of the separation of powers early in the nineteenth century, the faithful agent theory ultimately came to be its dominant interpretive methodology. In the end, the structural policies implicit in the constitutional separation of lawmaking from judging and the requirements of bicameralism and presentment make the equity of the statute doctrine difficult to square with the constitutional framework in which it would have to operate. Hence, questions about the appropriate method of statutory interpretation must be debated, as they have been for the past century, on the assumption that, in matters of federal statutory interpretation, the federal judge must act as the faithful agent of Congress.

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COLUMBIA LAW REVIEW

I. THE PROBLEM ELABORATED: FAITHFUL AGENT THEORIES

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HeinOnline -- 101 Colum. L. Rev. 24 2001

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wherein the law (by reason of its universality) is deficient."15 3 Because

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HeinOnline -- 101 Colum. L. Rev. 39 2001

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