Deriving Rules of Statutory Interpretation from the Constitution

Abstract

In an article appearing earlier in this volume, Professor Manning argued that the original understanding of the constitutional structure fits more tightly with the now settled faithful agent theory than with the background English tradition of equitable interpretation. Professor Eskridge replied, also in this volume, that the founding debates and early state and federal cases support various atextual practices that derive from the English tradition. Here, Professor Manning contends that much of their disagreement is attributable to methodological differences. First, focusing on the classification of various interpretive norms, he argues that many early practices cited by Professor Eskridge are consistent with the faithful agent theory and textualism, properly understood. Second, Professor Manning questions the probativeness of state cases in assessing the original understanding of federal judicial power. Third, he argues that scattered and often oblique remarks in the founding debates should carry little weight. Fourth, examining the way early Americans implemented the federal judicial power, Professor Manning stresses that the Marshall Court established an explicit and lasting commitment to what we now call the faithful agent theory.