Dynamic Statutory Interpretation.

• Jurisdiction: United States
• Author: Nagle, John Copeland
• Date: 01 June 1995

INTRODUCTION

Choosing any two months as pivotal in the development of statutory interpretation doctrine is a perilous enterprise, but two events occurred in November and December 1994 that lead me to try. The second event, the publication of Professor William Eskridge's book, Dynamic Statutory Interpretation,(1) was expected. The first event, the Republican Party's capture of both houses of Congress, was entirely unexpected. The coincidence of this book and this election may signal the beginning of a reevaluation of the theories of statutory interpretation prevailing in the academy and in the courts.

Dynamic Statutory Interpretation marks the culmination of a decade of Professor Eskridge's prolific scholarship.(2) The sheer breadth of what Eskridge accomplishes in the book is overwhelming. He surveys a host of legal theories--originalism, legal process, postmodernism, natural law, hermeneutics, practical reasoning, feminist republicanism--and produces a work that teaches as much about legal theory in general as it does about statutory interpretation in particular. Along the way, he develops his own theory of how current political values influence the interpretation of statutes enacted under different conditions in earlier periods--a theory of "dynamic" statutory interpretation.

A long list of leading scholars have turned their attention to the theory and practice of statutory interpretation during the 1980s and 1990s,(3) and three of the Justices now sitting on the Supreme Court have written academic works in the field.(4) Dynamic Statutory Interpretation stands out from this remarkable renaissance in statutory interpretation because it draws from and synthesizes all of these writings to produce one of the most comprehensive theories of statutory interpretation advanced in recent years.

Whether this theory will affect those who actually interpret statutes remains to be seen. The United States Supreme Court has been singularly unimpressed with the direction the academic literature has taken;(5) instead, the Court has generally adhered to an originalist approach that emphasizes the text, intent, and purpose of a statute as the touchstones of statutory interpretation. No single theory of statutory interpretation explains all of the Court's recent decisions,(6) but the Court most often employs an originalist approach, despite the overwhelming consensus among academic commentators that originalist theories are passe.(7)

Eskridge shares the academy's skepticism about originalism. He acknowledges the value of originalist sources--statutory text and structure, legislative history and purpose--and finds some useful insights in originalist theories. He concludes, however, that originalist approaches to statutory interpretation are undesirable in theory and unworkable in practice. Eskridge's theory of dynamic statutory interpretation asserts that statutory meaning must evolve over time. For Eskridge, this evolution should track current political trends in order to achieve an interpretation of a statute that best fits the values and goals animating current legislators, administrative agencies, and other interested actors. Judges and others interpreting statutes, therefore, may properly consider the interpretation preferred by the current legislature when deciding how to interpret a statute in particular circumstances.

Eskridge's call to rely on the values of the current legislature takes on a new meaning in light of the Republican Party's gain of control over both houses of Congress for the first time since 1954. The legislative agenda previously controlled by long-term Democratic committee chairs such as Edward Kennedy, Don Edwards, and Jack Brooks is now in the hands of Jesse Helms, Robert Packwood, and Henry Hyde. The consequences of this transition are just beginning to manifest themselves. Most importantly, Newt Gingrich, the new Speaker of the House of Representatives, brings a revolutionary set of ideas to the fore of the congressional agenda that could radically alter the way the federal government conducts business with America.

The Contract with America, of which Gingrich was a primary architect, proposes numerous radical legislative reforms. The proposals include amending the Constitution to require a balanced federal budget; revamping federal welfare programs; compensating private property owners affected by environmental controls; and reforming the nation's tort system.(8) The House of Representatives has already enacted the Contract's proposals, changing its operating procedures.(9)

Whether Congress actually enacts any of these legislative proposals in anything similar to their original form is surely questionable, but that is not my concern here. According to Eskridge, the very existence of this new legislative agenda has consequences for interpreting existing statutes because the values held by the congressional majority are values dynamic statutory interpreters use to guide their interpretation. Thus, the meaning of federal statutes in the world according to Newt Gingrich will be much different than the meaning of those same statutes to the Congresses that enacted them.

Eskridge could not have foreseen the direction in which congressional dynamics would move when he developed his idea of dynamic statutory interpretation. Indeed, the political culture of the 1980s--a liberal Congress controlled by the Democratic Party and a conservative presidency and judiciary controlled by the Republican Party--may have exerted a subtle influence over the liberal theories of statutory interpretation that flowered during that time. A similar point has been made with respect to conservative theories of executive power(10) and statutory interpretation.(11) This does not prove the correctness of any particular theory of statutory interpretation, nor does it suggest that any theory springs from partisan political considerations. But dynamic statutory interpretation will now produce politically unpopular results for those who question the new congressional agenda.(12)

Eskridge's book raises far more issues than I could hope to address in this review. My aim rather is to counter two of Eskridge's central claims. First, Eskridge repeatedly claims that originalist approaches are just as indeterminate and no more constraining than dynamic approaches.(13) This is an overstatement. Originalist statutory interpretation is not inevitably dynamic. Although originalist approaches are not completely determinate, it is demonstrably wrong to maintain that they are just as malleable as a dynamic approach. Second, by offering few interpretive constraints and encouraging reliance on current congressional values, Eskridge's normative argument for dynamic statutory interpretation leaves all statutes at the mercy of the current Congress for interpretive guidance.

Section I of this review describes how a dynamic statutory interpreter approaches the task of interpreting statutes. Section II rejects Eskridge's claim that dynamic statutory interpretation is empirically inevitable. I show that Eskridge exaggerates the difficulties faced by originalist theories of statutory interpretation while remaining blind to the fact that many of these same problems plague dynamic statutory interpretation. To illustrate these points, I examine Brown v. Gardner,(14) a unanimous 1994 Supreme Court decision invalidating a seventy-year-old veterans' benefits regulation as contrary to the statute's plain language. Finally, Section III responds to Eskridge's claim that dynamic statutory interpretation is normatively desirable. As the ascendance of Newt Gingrich to the Speaker of the House reminds those who oppose his agenda, the Framers of the Constitution were wise to implement the formal procedures for lawmaking in Article 1, Section 7, thus constraining the interpretive powers of the federal judiciary.

1. INTERPRETING STATUTES DYNAMICALLY

   Eskridge defines dynamic statutory interpretation not by what it is, but by what it is not. Dynamic statutory interpretation is not originalist statutory interpretation.(15) Eskridge classifies three distinct theories as "originalist" approaches: textualist, intentionalist, and purposive. An intentionalist approach seeks to ascertain the intent of Congress in enacting the statute.(16) A purposive approach pursues an interpretation that is consistent with the purposes of the statute.(17) A textualist approach interprets the statute according to the meaning of the statutory language alone.(18) Each theory, therefore, seeks to ascertain the correct interpretation of the statute by reference to objective criteria gleaned from some aspect of the original statutory enactment.

   Eskridge claims that all originalist theories fail because they are indeterminate, because they do not reflect a coherent view of political theory or legislatures, and because they produce normatively questionable results. Eskridge is especially critical of originalist claims to produce a determinate answer in specific cases, asserting that "no originalist theory generates results in statutory cases that can objectively be tied to majority-based preferences, and originalist theories collectively cannot exclude evolutive values from statutory interpretation."(19)

   Eskridge focuses primarily on textualism. Statutory language, says Eskridge, is hopelessly ambiguous. This ambiguity is a result of several factors. First, statutory language is written by a collective author and is rewritten by other legislatures over time.(20) Second, the legislature sometimes intentionally writes ambiguous statutory language in order to avoid a controversial issue.(21) Third, statutory language takes its meaning from the context in which it was written.(22) Finally, the interpreter's own context and values necessarily influence the way she reads statutory language.(23) As a result, "what is or is not a plain meaning is to a large extent constructed, not found, by the...