Statutory interpretation as contestatory democracy.

AuthorStaszewski, Glen
PositionIntroduction through III. Conceptualizing Statutory Interpretation as Contestatory Democracy B. The Intermediate Role of Agencies, p. 221-261

ABSTRACT

This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the law. The Article claims that this understanding of statutory interpretation is both descriptively accurate and normatively attractive, and it explores some of the most important implications of recharacterizing statutory interpretation in this fashion. Specifically, this understanding of statutory interpretation sheds new light on the most fundamental problems with textualism, and it provides reasons to give serious consideration to proposals for increased judicial candor in statutory interpretation and for judicial review of at least some types of legislation for due process of law making.

TABLE OF CONTENTS INTRODUCTION I. THE COUNTERMAJORITARIAN DIFFICULTY IN STATUTORY INTERPRETATION II. LIBERTY AS NON-DOMINATION AND THE TWO DIMENSIONS OF DEMOCRACY III. CONCEPTUALIZING STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY A. The Authorial Role of an Elected Legislature B. The Intermediate Role of Agencies C. The Editorial Role of the Judiciary 1. Judicial Review of Agency Law Making 2. Statutory Interpretation Without Agencies 3. Statutory Interpretation with Agency Guidance IV. RECOGNIZING STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY V. THE IMPLICATIONS OF STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY A. Problems with Textualism B. Reassessing Due Process of Law Making and Judicial Candor CONCLUSION INTRODUCTION

Constitutional theorists have devoted considerable attention to the question of what, if anything, justifies the power of judicial review in a democracy. (1) The "countermajoritarian difficulty" questions the legitimacy of an unelected judiciary's authority to invalidate the policy decisions of elected representatives of the people. (2) This problem is unlikely to go away any time soon, considering persistent charges of "judicial activism" against the Rehnquist (3) and Roberts Courts. (4)

Meanwhile, the democratic legitimacy of judicial law making in statutory interpretation has received far less attention. This disparity in treatment likely stems from the traditional view that courts do not engage in law making when they interpret statutes. Rather, courts are obligated to serve as faithful agents of the legislature, and thereby carry out the legislature's decisions. (5) The judiciary's authority to interpret statutes is easy to square with democracy from this perspective, because elected officials who are politically accountable to the people are making all of the important policy decisions. (6)

The traditional view has been difficult to sustain, however, for a variety of reasons. First, the legal realist movement and contemporary theories of interpretation have highlighted the inherent ambiguity of language and the severe limitations on legislative foresight] It is therefore widely accepted that the legislature does not explicitly resolve every question that arises in statutory interpretation, and that courts have considerable interpretative leeway. Second, the rise of the modern regulatory state has resulted in widespread delegations of broad discretionary authority from the legislature to other institutions, and a candid recognition that the resolution of ambiguities in federal regulatory statutes necessarily involves policy making. (8) Third, recent developments in political science have undermined the optimistic pluralistic conception of the legislative process that underlay the traditional model, and called into question the capacity of voters to hold elected officials accountable for their policy decisions. (9) These developments raise serious questions about the cogency of faithful agent theory, and suggest that the democratic legitimacy of statutory interpretation can no longer be taken for granted.

Partly in response to these developments, several prominent scholars have rejected faithful agent theory and suggested that courts should be understood as cooperative partners of the legislature in the process of statutory interpretation. These theorists recognize the inevitability of judicial discretion in statutory interpretation, and claim that courts can play a desirable role in (1) updating statutes to reflect changed circumstances; (10) (2) placing needed limits on government administration and ensuring stability and consistency in interpretation; (11) (3) promoting background norms that would improve the operation of government; (12) or (4) facilitating the integrity of the entire legal system. (13) Although some of these scholars have addressed the democratic legitimacy of a relatively ambitious judicial role in statutory interpretation, (14) it seems fair to say that those efforts have not been completely successful. Not only are cooperative partner theories widely viewed as undemocratic, but textualism--a more formal version of faithful agent theory than the traditional model (15)--has been tremendously influential in recent years precisely because it allegedly limits the judiciary's policymaking discretion. (16)

This Article contends that the solution to the countermajoritarian difficulty in statutory interpretation (17) can be found in recent literature on democratic theory, which returns to first principles and identifies the most fundamental limitation on governmental authority and the two essential dimensions of democracy. Specifically, Philip Pettit has set forth a republican conception of liberty as non-domination, whereby freedom consists of the absence of the possibility of arbitrary domination by others. (18) Though government promotes liberty under this view by protecting citizens from the possibility of arbitrary domination by private parties, the government can also be a potential source of arbitrary domination. It is therefore essential for any society that values liberty to provide structural safeguards to limit the possibility of arbitrary domination by the state. Pettit claims that a republican democracy with two essential dimensions is the form of government that is most conducive to this understanding of freedom. (19)

Because government acts nonarbitrarily when it is "forced to track the common, perceived interests of citizens," (20) Pettit claims that "it is always better to have an arrangement under which the possibility of government's being indifferent to the common, perceived interests of ordinary people is reduced or removed." (21) This is the function periodic elections perform in a republican democracy. Public officials are unlikely to win reelection if they are indifferent to the collective interests of the people. Pettit recognizes, however, that elections can provide only a limited protection against the possibility of arbitrary domination, because electoral democracy is not necessarily responsive to the interests and perspectives of minorities:

Electoral democracy may mean that that government cannot be wholly indifferent to popular perceptions about common interests and that it cannot fail altogether to try and advance those interests. But it is quite consistent with electoral democracy that government should only track the perceived interests of a majority, absolute or relative, on any issue and that it should have a dominating aspect from the point of view of others. (22) In other words, the tyranny of the majority precludes the possibility that electoral democracy is sufficient to ensure that government preserves freedom as non-domination. (23)

Pettit therefore argues that democracy must also contain mechanisms to ensure that the interests and perspectives of minorities are considered. He points out that the most promising solution to this concern is a procedure that would enable people to call public decisions into question, "and to trigger a review; in particular, to trigger a review in a forum that they and others can all endorse as an impartial court of appeal: as a forum in which relevant interests are taken equally into account and only impartially supported decisions are upheld." (24) The complaint in a contestatory regime of this nature is not that some people fared less well than others as a result of a decision, but rather that the decision was made in a manner that failed to take some interests or perspectives equally into account. "The assumption behind the complaint is that if those interests had been taken equally into account, then the ultimate decision would have been different." (25)

Pettit claims that the electoral mode of democracy promotes legitimacy because it ensures that governmental decisions originate, "however indirectly, in the collective will of the people." (26) Significantly, however, the contestatory mode of democracy further improves the democratic legitimacy of those decisions to the extent that they can withstand challenges brought by individuals in appropriate institutional settings. (27) Whereas the electoral mode of democracy "gives the collective people an indirect power of authorship over the laws," the contestatory mode of democracy "would give the people, considered individually, a limited and, of course, indirect power of editorship over those laws." (28) Pettit demonstrates that the importance of contestatory democracy has been a prominent theme in democratic theory since at least the seventeenth century, (29) but he also recognizes that this idea...

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