Constitutional Statutory Synthesis

Abstract

Statutory evolutionists contend that statutes should be updated to reflect modern conditions. Originalists protest - asserting rule-of-law oriented soundbytes such as judges should interpret the law, make - and assume their role as guardians against subjective judicial policymaking and legal unpredictability. Evolutionists respond that laws inherently contain many ambiguities and that the myth of a judge as law-finder was dispensed with by Legal Realists such as Holmes. In the end, the two sides reach an impasse, rhetoric in tow, talking past each other more than anything else. It does have to be this way. A restrained theory of statutory evolution exists - one completely consistent with the predominant originalist premises of legitimacy in a democratic state: Called Constitutional Statutory Synthesis, it uses sufficiently accepted constitutional change as a medium for statutory evolution. The Article demonstrates that the canon of construction to avoid constitutional doubt is only the tip of the iceberg, as there are a number of situations where the Constitution is implicated but violated, and constitutional norms and principles should affect statutory interpretation even where a statute is undoubtedly constitutional. In doing so, the Article develops a framework of not unfaithful statutory interpretation in which the interpretation of a statute evolves only when, but necessarily when, there has been sufficiently accepted constitutional change after the statute's enactment. This synthetic approach sheds light on some of the most famous instances of statutory interpretation from antitrust - Alcoa and Sylvania - to civil rights - Weber and Bob Jones - and lends insight into the Rehnquist Court's use of federalism-inspired clear-statement rules.