Statutes and democratic self-authorship.

AuthorKahn, Paul W.
PositionIntroduction through II. The Anatomy of Authorship, p. 115-145

Abstract

In this Article, we argue that both sides of the usual debate over statutory interpretation--text versus purpose--rest on a common, but flawed, premise. Judges and scholars have assumed that legislative bodies are the authors of statutes. We disagree; instead, we argue that the people are the authors of statutes. Legislative bodies play an indispensable role in the process: they draft statutes. And courts play a similarly indispensable role: they interpret statutes. But ultimately, it is the polity--we, the people--that is responsible, as authors, for the content of the law.

This shift yields dramatic consequences. To date, no theory of statutory interpretation has been able to explain the actual labor of interpreting statutes--either with respect to "super" statutes or with respect to regular statutes. Canons of statutory construction, though familiar to any practitioner, are a source of puzzlement for theorists. Our theory attempts to answer the challenge. It both offers an explanation of existing interpretive practices and supplies a normatively compelling view of what statutory construction involves. In this effort, we reach back to the origins of modern political theory--to the work of Thomas Hobbes--to demonstrate that "self-authorship" has long been integral to the ideal of democracy.

Ultimately, the problem is very simple. Commentators have long been sympathetic to the notion of self-authorship as applied to "fundamental" law--especially constitutional law. But they have failed to notice that the exact same issues are at stake in the construction of "ordinary" laws. That is the connection we make here.

TABLE OF CONTENTS Introduction I. Where the Debate Stands A. Text and Purpose B. An Example: Ali v. Federal Bureau of Prisons C. Dworkin's Dissent II. The Anatomy of Authorship III. Self-Authorship and Statutory Construction A. "Super" Statutes B. "Ordinary" Statutes 1. Harmony 2. Equity 3. Gymnastics IV. Self-Authorship and Democratic Legitimacy A. The Hobbesian Paradox: Natural Right and Sovereign Power B. From Property to Authorship as the Foundation of Law C. The Procedural Turn in Modern Democratic Theory Conclusion Introduction

In a democracy, we ordinarily distinguish the making of law from its application. The former, we think of as a task for the legislature, whereas the latter is ultimately the responsibility of the judiciary. (1) This separation of powers approach to law is legion in American political theory, described first in The Federalist Papers and endlessly repeated since. (2) It mirrors the logic of "balanced forces" characteristic of Newtonian physics: each branch asserts a force on the others. (3) The result is a harmonious political machine that runs itself.

Trying to do legal theory today with this model of institutional balance is like trying to do physics with the Newtonian system. Stand back at the right distance--not too far and not too close--and the distinction between making and applying law seems not only plausible, but highly intuitive. Legislators author laws; courts apply them. But closer inspection causes the Newtonian explanations to break down. Take a few steps forward and the boundary between creating and applying law begins to feather; a few more, and it vanishes entirely.

This is the lesson of our decades-long debate over the nature of interpretation--a debate that originated in constitutional theory but subsequently spread to statutory construction. (4) Some argue that it

is institutionally mandatory for judges to apply legal texts "as written." (5) Others respond that no text interprets itself; absent interpretation, there is nothing to apply. (6) Debate has consolidated around how "dynamic" statutory interpretation should be. (7) In our view, however, this debate has labored under common but deeply flawed assumptions about authorship. Anxious to avoid the accusation of judicial aggrandizement, scholars on both sides of the debate frame their theories as if the role of the courts is to be the "faithful agents" of the author of the law: Congress. (8) We reject this model of legislative authorship root and branch. Legislators play an indispensable role in statutory production: they draft statutes. And courts, too, play an indispensable role in such production: they interpret statutes. Neither drafting nor interpreting, however, is the same as authoring.

In a democracy, the people must see themselves as the authors of the law. We must believe the law to be something we do together, not something that is done to us. This is true not just of the Constitution, authored by "We the People," but of statutes as well. (9) We are not democrats occasionally, as if collective authorship is a phenomenon that occurs only in moments of political crisis. Rather, collective construction--democratic self-authorship--is the legitimating condition of all law. Instead of imagining judges as the "faithful agents" of legislators, the right model of statutory construction is one that understands both legislators and judges as faithful agents of the people. (10)

Virtually all participants in the debate over statutory interpretation assume that authorship precedes interpretation. This is backwards. Authoring is not the fact of drafting. It is a social practice of attribution and accountability. Authorship is the consequence of interpretation, not its precondition. In a democracy, the best interpretation of a statute is one that persuades us to hold ourselves accountable for the law as something that we the people have authored together. Captured by the Newtonian image of governmental forces, scholars have been quick to assume that Congress authors statutes. They fear that the only alternative to congressional authorship is judicial authorship--and that judicial authorship would be an unconstitutional usurpation.

It is time to abandon the Newtonian imagery. Democracy, not separation of powers, should be the lodestar of statutory construction. Congress does not rule us. We rule ourselves; we are the authors of our own law. This is neither a fact nor a mere metaphor. Rather, it is a necessary belief without which we are continually forced to choose between the rule of law and self-rule. In interpreting a statute, the proper judicial role is to enable us to avoid this choice, by sustaining belief in democratic self-authorship.

Our proposed relocation of authorship is directed less at practice than at theory. Much of what courts actually do is more easily explained by our theory of democratic self-authorship than by traditional accounts of legislative authorship. Judges already share an intuition of democratic legitimacy that our account theorizes. The scholarly debate is another matter. Scholars have conflated democracy with electoral politics. In the traditional view, democracy, as defined in electoral terms, must be saved from the courts. We turn this over, arguing that democracy depends upon judicial interpretation. The role of courts is to explain the law as advancing a public purpose that the people can imagine as their own. Absent such an explanation, even a just law can seem as alien to us as the law of another country. (11)

Contemporary democratic theorists have not entirely ignored the idea of democratic self-authorship. But they have taken the idea in a procedural direction, focusing first on voting and then on legislative process. (12) Procedural constraints are certainly important. But they are important less as a matter of democratic legitimacy than as a matter of individual justice. Just as it is unjust to exclude anyone from voting or speaking to the issues, it is unjust to privilege certain interests in the legislative process. At the same time, merely satisfying the demands of procedure will not ensure that the law produced is seen as authored by the people. Even when legislative bodies are functional and responsive, we are always governed in substantial part by laws that we had no part in creating. Those laws, too, must meet the democratic need to see ourselves as the authors of the law by which we are governed. Otherwise, we are governed by the dead hand of the past--hardly a democratic principle. (13) Only the courts can address this problem upon which the legitimacy of the entire system rests. They must show us that the law--old and new, constitutional and statutory--is something for which we can hold ourselves accountable as authors.

Of course, democratic legitimacy cannot require that every citizen approve of every law. Democracies are practical projects of governance, not utopian societies of discourse. The law is not what any one of us would have done had we had sole responsibility. The law is what we have collectively done together. Popular authorship of law is not different in kind from other forms of collective enterprise. Imagine a faculty member who disagrees with the decision to hire a new colleague. He might express his view and vote against the proposal. But if he loses, he will still accept the decision as something the faculty--including him--has done together. He will tell others that this is "what we have done." He will hold himself accountable for that decision and defend it.

In this example, the fact of voting goes only to the mechanism of the decision; it does not bear on the faculty member's responsibility to hold himself accountable for the decision's content. Of course, there are limits. If the faculty turns anti-Semitic or votes for the dean's nephew out of fear of retaliation, the individual faculty member may refuse to accept authorship of the decision. In those cases, he will call the decision illegitimate. Crucially, he will say this even if he exercised a right to vote. Long after the votes have been cast, the faculty member must still account for the legitimacy of the results. The same is true of democratic self-authorship in the context of statutory...

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