Statutory Interpretation

• Author: Jonathan R. Macey
• Pages: 2525-2526

Page 2525

Much has been written of the circumstances under which courts should strike down LEGISLATION. The reluctance of Article III courts to strike down INTEREST GROUP legislation as unconstitutional finds its source in two seemingly irreconcilable components of American CONSTITUTIONAL THEORY, both derived from the SEPARATION OF POWERS embodied in Articles I, II, and III. The first is the system of CHECKS AND BALANCES, which is intended to raise the decision costs of government by requiring that the various branches share power. The second is the basic constitutional premise, embodied in Article I, that the legislature has the power to make law. These two constitutional principles, taken together, imply that judicial interpretation is consistent with the constitutional scheme only if two conditions are satisfied: the interpretive act (1) must result in making legislation more public-regarding by serving as a check on legislative excess and (2) must not intrude on the constitutional authority of the legislature to make law.

Condition 2 ensures that the Constitution's allocation of the lawmaking function to the legislature will remain intact, while Condition 1 reflects the constitutional premise that federal courts improve the operation of the democratic process by serving as a structural check on Congress's tendency to engage in factionalism. Condition 1 is justified by the need to mitigate the harmful effects of interest group domination of the political process. Condition 2 is justified by the basic principle of democratic theory that the power to make law ultimately should reside in representative institutions such as Congress.

While these conditions appear to be irreconcilable, they may be reconciled by recognizing that the constitutional requirement that the judiciary serve as a check on Congress's excesses often is fulfilled by the very act of statutory interpretation itself. The judiciary, using traditional methods of statutory interpretation, inevitably checks legislative excess by serving as a mechanism that encourages passage of public-regarding legislation and impedes passage of interest group bargains. In other words, there need not be overt confrontation between the judicial branch and the legislative branch in order for checking and balancing to take place. Checking legislative abuse is an institutional by-product of the judiciary's traditional role as interpreter of statutes in the resolution of specific...