Mother may I? Imposing mandatory prospective rules of statutory interpretation.

• Author: Alexander, Larry
• Position: Response to Nicholas Quinn Rosenkranz, Harvard Law Review, vol. 115, p. 2085, 2002

Suppose an imperious woman announces that, henceforth, she will construe the sentences of others as completely meaningless unless each sentence is preceded by the obsequious question "Mother May I?" When this domineering woman proceeds to ignore sentences that do not begin with "Mother May I" because she deems them to be gibberish, is she really engaged in any recognizable form of "interpretation"? We think not. Her artificial rule, completely unrelated to conventional understandings of words or the intentions of the speakers, has made it highly unlikely that she is engaging in anything remotely resembling interpretation. To treat the expressions of others as gibberish just because they omit "Mother May I" is to misunderstand, not "interpret," what their words mean.

Suppose the imperious woman is also more than slightly addled and announces to the world that henceforth, her own vocalizations are to be treated as nothing but gibberish by others unless she first precedes each of her sentences with "I am talking to you." If in the future she falls to the ground, writhing in pain, and calls out for help, begging someone to call a doctor, should the world ignore her apparent entreaty because she did not utter the magic words in her time of need? Once again, we think not. If we want to respect her wishes at the time she collapses, we ought to come to her aid. Though her second artificial rule of construction requests that we depart from the meaning of her subsequent expressions when they are not preceded by the required words, if we are to follow the meaning of those subsequent expressions, we ought to recognize that she really is calling for help. If we ignore her appeals, we are ignoring what she wants now.

Nicholas Rosenkranz, in his recent excellent article in the Harvard Law Review, (1) essentially suggests that in the first scenario, when the woman ignores the communications of others that are not prefaced with the all-important question, the woman is nonetheless engaged in interpretation. Likewise, we think Rosenkranz is committed to the view that the woman's apparent plea for help in the second scenario is not a call for help at all but is instead gibberish because it too was not preceded by words that would make it clear that the woman was engaged in purposeful communication with others. To be sure, Rosenkranz's article is not about bossy men or women at all. Instead, his article is about the constitutionality of mandatory prospective rules of statutory interpretation created by Congress and the federal judiciary. But if one substitutes the judiciary for the woman in first example and the Congress for the woman in the second scenario, we think that Rosenkranz would require "interpreters" to ignore the communications discussed in both scenarios. In both situations, the relevant "lawmaker" has decreed that magic words must be uttered if there is to be meaningful communication. In the absence of these magic words, the relevant expressions/statutes have no meaning, or at least that is what Rosenkranz would have us believe.

We think that Rosenkranz is mistaken. In our view, statutes (and words more generally) have meanings independent of (and sometimes contrary to) any mandatory rules of interpretation that Congress or the judiciary might have laid down in the past. (2) Artificial rules of interpretation laid down in advance that do not reflect subsequent usages or intentions should not be allowed to trump the actual meaning of statutes. For instance, if a future Congress uses the phrase "marriage" in a statute to clearly encompass unions between two gay men or two lesbian women, (3) "marriage" in that statute should be so understood despite the seemingly ironclad definition of marriage found in the Dictionary Act. (4) In our view, one is not engaging in interpretation of the second act if one allows the Dictionary Act's definition of marriage to trump the meaning of marriage in the second statute. Likewise, if a future Congress passes a one-sentence statute (statute A) that only acts to repeal an existing one-sentence statute (statute B) that in turn had repealed another (statute C), the likely meaning and effect of statute A is to revive statute C. There is no other way of making sense of the repeal of the repealing statute. This is true despite the fact that there is a rule of construction in Title 1 that requires the express revival of statute A in statute C if statute A is to be revived. (5)

We should not be understood as insisting that Congress may not pass prospective interpretive guidelines that suggest what future Congresses might mean when they use a particular word or phrase in subsequently enacted statutes. Such statutory guidelines, though they cannot directly affect a subsequent statute's actual meaning, can make it more likely that the actual meaning will be consistent with the meaning suggested by the prospective interpretive guidelines. When subsequently drafting a statute, Congress might take into account the guidelines announced in the first statute, just as a Congress might very well take into account dictionary definitions when drafting statutes. (6)

However, we are claiming that Congress cannot pass mandatory prospective rules of interpretation that purport to oblige interpreters of future statutes (be those interpreters members of the executive or judicial branches or the general public). Because the lodestar of statutory interpretation is the discernment of the statute's meaning, binding rules of interpretation of whatever sort must be ignored when an interpreter decides that the meaning of a statute differs from the constructed "meaning" derived from the application of binding rules of construction.

Thus, a statute that mandated that the word "person" be construed in subsequently enacted statutes as including corporations and partnerships could not constitutionally require that interpreters of a subsequent statute actually understand "person" to include corporations and partnerships when it is clear that the subsequent statute uses "person" in the more familiar, natural person sense of the word. For instance, if a subsequently enacted bankruptcy statute has two sections, one that addresses bankruptcies of "persons," and one that speaks of bankruptcies of "corporation and partnerships," one probably should not construe the statute as allowing corporations and partnerships effectively to choose between the two different bankruptcy sections. Instead, it seems likely that the meaning of the statute (under either a textualist or intentionalist approach) is that corporations and partnerships may only file under the section specifically designed for corporations and partnerships, notwithstanding the preexisting statutory definition that made corporations and partnerships "persons." (7)

Contrary to Mr. Rosenkranz's claim that the meaning of a statute is merely "derived ... by bringing interpretive rules to bear upon it," we think that a statute's meaning (and the meaning of words and sentences more generally) is independent of whatever artificial rules that legislators and judges might create to either constrain themselves or others, (8) In particular, we are intentionalists and believe that the meanings of words are those meanings intended by the author(s) or speaker(s). As should be obvious, if the goal is to understand the intentions of authors and speakers, one cannot be artificially constrained by fixed meanings or rules. If one allows these meanings or rules to trump the intended meaning when the intent of the authors or...