Newt Gingrich, Dynamic Statutory Interpreter
43 Pages Posted: 20 Mar 2007
Dynamic Statutory Interpretation marks the culmination of a decade of Professor William Eskridge's prolific scholarship. In his book, Eskridge develops his own theory of how current political values influence the interpretation of statutes enacted under different conditions in earlier periods - a theory of dynamic statutory interpretation.
Ironically, Eskridge published his book just as Newt Gingrich ascended to the Speaker of the House after the 1994 congressional elections. Gingrich and the new Republican majority present challenges to Eskridge's hope for a theory of statutory interpretation influenced by current policy preferences. In this essay, I seek to counter two of Eskridge's central claims. First, Eskridge repeatedly claims that originalist approaches are just as indeterminate and no more constraining than dynamic approaches. This is an overstatement. Originalist statutory interpretation is not inevitably dynamic. Although originalist approaches are not completely determinate, it is demonstrably wrong to maintain that they are just as malleable as a dynamic approach. Second, by offering few interpretive constraints and encouraging reliance on current congressional values, Eskridge's normative argument for dynamic statutory interpretation leaves all statutes at the mercy of the current Congress for interpretive guidance.
Keywords: Gingrich, Eskridge, interpretation, plain meaning, originalist, Congress
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