The Rostrum Principle: Why the Boundaries of the Public Forum Matter to Statutory Interpretation

Abstract

Should the Court intervene when the text of a law says one thing but the public “marketing” of the law – the intent as expressed by the legislators to the voting public – says another, presumably more politically palatable, idea? This article proposes a normative approach to statutory interpretation (the “Rostrum Principle”) that would consider how legislation was marketed to the public by the legislators when interpreting ambiguous language. The Rostrum Principle would operate alongside other statutory interpretation tools as another form of extrinsic evidence of meaning, in other words, when there is a disconnect between the deal struck by legislators and the marketing of legislation to the people, the court should interpret the legislation with a presumption toward the way it was expressed to the voters by legislators. This allows the Court to reinvigorate separation of powers through strengthening the voter’s ability to hold the legislature accountable for its policy campaigns.

Legislators’ marketing of legislation takes place beyond traditional legislative history and in many more forms of media outreach. This article explores the shifting public forum, how the public debate relates to the legislative agenda, and finally what these shifts mean for separation of powers. The article also examines recent federal circuit courts wresting with how or when such evidence of meaning might be useful to interpretation. The article concludes with a definition and limiting principles that are necessary to development of the Rostrum Principle, and addresses anticipated criticisms and concerns.