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

Posted: 6 Mar 2002  

William N. Eskridge Jr.

Yale University - Law School

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.

Suggested Citation

Eskridge, William N., All About Words: Early Understandings of the 'Judicial Power' in Statutory Interpretation, 1776-1806. Columbia Law Review, June 2001. Available at SSRN: https://ssrn.com/abstract=298641

William Nichol Eskridge Jr. (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-9056 (Phone)

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