The Judge as a Fly on the Wall: Interpretive Lessons from the Positive Political Theory of Legislation

Abstract

In the modern debate over statutory interpretation, scholars frequently talk past one another, arguing for one or another interpretive approach on the basis of competing, and frequently undertheorized, conceptions of legislative supremacy and political theory. For example, so-called new textualists insist that the plain meaning approach is compelled by the U.S. Constitution and rule of law values; by contrast, theorists counseling a more dynamic approach often reject the premise of legislative supremacy that is supposed by the textualist view. A key element missing, therefore, from the modern statutory interpretation debate is a conspicuous articulation of the positive and empirical premises underlying the normative theory of interpretation; and, in particular, an unclear portrait of the theory of lawmaking supporting the theory of interpretation. In this paper, we consider statutory interpretation from the perspective of positive political theory (PPT) looking, first, at the best framework for understanding the relationship between duly authorized lawmakers and the judge/interpreters. We build upon the modern literature of communication theory to support the familiar view that a statute is best understood as an act of communication by the legislature to an audience. PPT helps us to draw various lessons for modern interpretation debates from this assumption. We consider several of these lessons in our paper, and we focus especially on the hoary debate over the use and utility of legislative history in construing ambiguous statutory language.