All About Words: Early Understandings of the 'Judicial Power' in Statutory Interpretation, 1776-1806

Abstract:     
What understanding of the "judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, Professor Eskridge explores the background understanding of the judiciary's role in the interpretation of legislative texts, and answers earlier work by scholars like Professor John Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpretive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretation began with the words of the text, it by no means confined its search for meaning to the plain text. He concludes that the early practices, especially the methodology of John Marshall, provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutional norms in the service of carrying out the judiciary's constitutional role.

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