Home > Journals > WMLR > Vol. 56 (2014-2015) > Iss. 1 (2014)
William & Mary Law Review
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.