Lawmaking Made Easy

Abstract

This essay addresses one justification for the familiar argument that judges should robustly construe statutes to accommodate unforeseen or otherwise unprovided-for factual, moral, and legal contexts — even if doing so cannot be squared with the statutes' original meaning. On one account, legislative supremacy is affirmatively promoted by such countertextual judicial policy-making because Members of Congress prefer for judges to assume some of the responsibility for “hard policy questions.” And if judges practice a dynamic approach to interpretation, Congress can accomplish more of its objectives in the public interest. If that is what Congress wants, then a faithful agent should presumably adopt interpretive techniques that advance that objective. This argument has found a home in many areas of public law, including discussions of the non-delegation doctrine, federal common law, and the use of legislative history in statutory interpretation. Although this essay takes no position on the merits of those underlying practices, it seeks to highlight a culture of argument that presupposes that, where lawmaking is concerned, more is better. The essay contends that the more-is-better position contradicts a central premise of our constitutional structure — the view, expressed in Article I’s bicameralism-and-presentment requirements, that it should be difficult to pass legislation without a broad political consensus behind its enactment.