Statutory Originalism, National Security, and the Definition of Federal Crimes

Abstract

This paper focuses on statutory originalism, the claim that statutes mean what they meant at enactment, to examine two cases implicating national security, and reach a broader conclusion regarding judicial construction of federal crimes. Specifically, the paper analyzes two examples of cases implicating national security where courts construed statutes beyond what they meant at enactment. The first is Hamdi v. Rumsfeld, involving the detention of a citizen as an enemy combatant, and the second is a piracy prosecution. Both cases illustrate how judges rely upon Congressional intent or purpose to validate novel exercises of Executive branch authority notwithstanding statutory originalist meanings to the contrary. The paper also describes parallels between a textualist approach to statutory construction and basic principles of federal criminal law. And the paper concludes that a textualist approach to construing federal criminal statutes is not only required by law, but also would promote the legitimacy of the federal justice system.