Permissive Interpretation

Abstract

Should the law of interpretation direct judges to seek out best answers, or only permissible ones? This Article defends the latter approach. In general, judges should have permission to adopt any of three interpretive principles that British scholars have called “the basic rules.” These principles, which have deep roots in Anglo-American law, are essentially moderated versions of textualism, purposivism, and pragmatism. Already, interpretive practice largely if implicitly tracks the basic rules, as evidenced by cases on everything from the major question doctrine to abortion rights. Deliberately adopting these permissive rules would not only surface judges’ interpretive personalities and render them accountable, but also facilitate compromise and, counterintuitively, foster legal determinacy. Permissions thus offer an attractive way to integrate individual judges’ divergent approaches to interpretation. In addition, the permissive basic rules make room for praise-giving interpretive principles, or “plaudits,” and also provide an historical basis for “strict scrutiny,” particularly the practice of overriding constitutional rights based on “compelling interests.”  

Keywords: interpretation, precedent, Supreme Court of the United States