Academic journal article William and Mary Law Review

Statutes and Democratic Self-Authorship

Academic journal article William and Mary Law Review

Statutes and Democratic Self-Authorship

Article excerpt


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.


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


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. …

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