"The limits of honest interpretation are too constricting...."
Guido Calabresi (1)
As Judge Calabresi has observed, American law has entered a new Age of Statutes. (2) Indeed, American law has undergone "statutorification." (3) At one time, our law consisted largely of common-law doctrine. However, today statutes have become the primary, dominant source of American law. (4)
Moreover, in the Judge's words, we are "[c]hoking on [s]tatutes." (5) Many of the statutes are old ones, (6) rendered obsolete by changes that occurred after their enactment. (7) When American statutes were few in number, it was feasible for the legislatures to monitor their legislation and periodically revisit the statutes to update them. However, today the sheer number of statutes precludes comprehensive monitoring by legislatures.
When comprehensive monitoring and revision were feasible, it was tenable for the courts to adopt an originalist approach to statutory interpretation. (8) Suppose, for example, that a court followed the legal process theory of interpretation, championed by Hart and Sacks. (9) Under this theory, each piece of legislation is presumed to be rational and purposive; the theory posits that legislators are reasonable persons pursuing legitimate social purposes in good faith. (10) If legislative drafters benignly endeavor to achieve such purposes, they will presumably attempt to produce extrinsic legislative history materials shedding valuable light on the meaning of legislation. By resorting to such materials, there is therefore little risk that the courts will be misled. Contemporaneous legislative history materials such as committee reports may yield helpful insight into the original intent (11) of the enacting legislature. (12) The contemporaneous materials can be so probative of legislative intent that they trump the seemingly plain meaning of the statutory text formally enacted by the legislature. (13)
In recent decades, though, the textualists have sharply criticized the legal process theory. Some textualists accused legal process theorists of political naivete. These critics pointed to the political science research exposing the significant influence of special interest groups in the legislative process. Many statutes are compromises shaped by political expediency. (14) In passing a statute, the legislature may be striking a deal with special interest groups. (15) Rather than reflecting a rational purpose that inspired the majority of legislators, extrinsic materials might represent attempted manipulation by a special interest group or a legislator allied with the group. (16) Even if the group feared that the legislature as a whole would not approve a particular provision, the group might insert language in a committee report to influence a court to construe the statute as if it contained that provision. (17) Other textualists have noted that the only law is the statutory text: "The [legislative] body as a whole ... has only outcomes." (18) Under the textualist theory, instead of relying heavily on extrinsic materials, the courts should accord primacy to text and rarely permit such materials to override the apparently clear meaning of statutory language. (19) The court can turn to contemporaneous linguistic conventions to discern the original meaning of the legislation. (20)
An interpretive focus on original intent may have been tolerable before the advent of the Age of Statutes. When there were relatively few statutes, the courts could indulge in the assumption that if a legislature concluded that conditions had changed so fundamentally that a statute no longer served its intended purpose, the legislature would intervene to amend or repeal the statute. On that assumption, a failure to intervene was a signal that, in the legislature's judgment, the statute still effectuated the original purpose. If so, the courts could be content to limit their inquiry to …