Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers
Victoria F. Nourse
Georgetown University Law Center
Georgetown Law Journal, Vol. 99, pp. 1119-1177, 2011
Georgetown Public Law Research Paper No. 12-072
Every lawyer's theory of statutory interpretation carries with it an idea of Congress, and every idea of Congress, in turn, carries with it an idea of the separation of powers. In this article, the author critiques three dominant academic theories of statutory interpretation -- textualism, purposivism, and game theory -- for their assumptions about Congress and the separation of powers. She argues that each academic theory fails to account for Congress's dominant institutional features: "the electoral connection," the "supermajoritarian difficulty," and the "principle of structure-induced ambiguity." This critique yields surprising conclusions, rejecting both standard liberal and conservative views on statutory interpretation.
"Plain" meaning, it turns out, is not so plain: it is just as capable of expanding the domain of statutes as is its primary competitor purposivism, because it waffles between ordinary and legalist versions of plain meaning. Conversely, standard views of purposivism, which textualists rightly criticize, might narrow the scope of statutes if focused on prototypical meaning. Game theory is far more sophisticated and more realistic about Congress than either textualism or purposivism and, yet, it too misunderstands Congress. Legislators bargain not only horizontally but also vertically (with a public audience in mind). Without considering the vertical audience, game theory may radically misconstrue a legislative bargain. More importantly, assuming that there is a deal, when there is none, may import the filibuster rule into the courtroom. Surely, a faithful agent is not supposed to defer to those who lost the congressional debate and tried to prevent a debate in the first place.
If academic theories assume much about Congress, they also assume much about the separation of powers, typically in the form of inchoate ideas of judicial or legislative power. This article argues that, in its original Madisonian form, the separation of powers was idealized not as a set of functional domains, but as an allocation of electoral forces driven by public representation. If that is correct, statutory interpretation must hew to textualism's original aim to embrace ordinary, public meaning and reject academic textualists' automatic resort to elite, legalist meaning. At the same time, textualists should, as a constitutional matter embrace rather than reject legislative history. For academics, this will seem oxymoronic: scholars define textualism as a rejection of legislative history. The oxymoron for academics is, however, the widespread practice of judges who do in fact resort to legislative history in cases of ambiguity. Implicitly, at least, the judiciary recognizes the constitutional argument for legislative history: that it checks judicial activism by forcing the judiciary to look to public, legislative meanings, rather than elite legalist meaning. Call this a "public meaning" theory of statutory interpretation based on a representational theory of the separation of powers.
Number of Pages in PDF File: 60
Keywords: Congress, textualism, purposivism, legislative history, constitutional interpretation, supermajoritarian difficulty, statutory interpretation, separation of powers, game theory, electoral connection
JEL Classification: K00, K30, K39Accepted Paper Series
Date posted: June 14, 2012
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