Purposeless Construction

Abstract:     
This Article critiques the Supreme Court’s tendency to embrace “purposeless construction” — statutory construction that ignores legislation underlying goals. It constructs a new democratic theory for purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for the statute that reflect public desires. Elected officials, whatever their foibles, have enormous expertise in understanding their constituents’ desires. Accordingly, announced statutory goals generally reflect widely held views of what the law should be. This Article also develops a rigorous approach to defining and identifying purpose to address concerns about purposeful construction supporting judicial activism.

Number of Pages in PDF File: 51

Keywords: statutory construction, goals, purpose, purposovism, textualism, plain meaning, public choice

Accepted Paper Series