Constitutional Structure and Statutory Formalism

Abstract

Cass Sunstein argues that judicial and academic debate about statutory formalism (and its operational arm, textualism) should shift from discussion of first principles to an investigation of the way formalism and antiformalism work in practice. Sunstein, for example, contends that we should compare how well formalism and antiformalism function as market-mimicking default rules, roughly defined as rules that replicate what Congress would have done had it explicitly spoken to a particular interpretive question. Leaving aside the difficult question of how to construct a meaningful empirical test of that counterfactual proposition (formalists think it impossible), one must first ask why that or any other conceivable interpretive value — equity, transparency, coherence, deliberation, lower decision costs, higher decision costs, etc. — should qualify as a proper benchmark for empirical testing. This paper argues that in a limited constitutional democracy, any inquiry into interpretive method must begin with the constitutional structure. That is to say, before testing whether a default rule promotes any particular interpretive value, we must first ascertain whether the Constitution either enjoins or permits the judiciary to recognize such a value as worthy of promotion. It is true, as Sunstein contends, that even state-of-the-art formalists sometimes invite skepticism of such an approach by making overstylized constitutional arguments about the implications of bicameralism and presentment, the requirements of democracy, and the like. Still, the modern formalist's (and, for that matter, antiformalist's) occasional overstatement of the case does not warrant rejection of constitutional analysis in the interpretive debate; if anything, it calls for a more textured inquiry into what the Constitution can or cannot tell us about interpretive method. Such analysis should cast light on the valuable question that Sunstein raised — whether and to what extent empirical analysis might help to assess the competing claims of formalism and antiformalism.