On September 19th the
American Constitution Society DC Lawyer Chapter will host a luncheon program on:
Originalism and Statutory Construction
For information about the program on the American Constitution Society website, click
here.
To RSVP please e-mail events@acslaw.org
If you have questions, please call (202) 393-6181.
The purpose of this website is to give some background information about the topic and the participants for the September 19, 2003 American Constitution Society program on "Originalism and Statutory Construction."
It is a lunch program beginning at 12:30 pm and featuring
William Eskridge, Jr. of Yale Law School,
John Manning of Columbia University, and
Jonathan Molot of George Washington University. Location: China Doll Restaurant, 627 H Street, N.W., 12:30. Lunch will be served. Cost is $12.00 per person. Please RSVP to events@acslaw.org or call (202) 393-6181.
In a series of articles published in the Columbia Law Review in 2001, Professor Manning (currently a
visiting professor at the University of Virginia) and Professor Eskridge discussed originalism and statutory construction. The following brief summaries of those articles are from the
Columbia Law Review's website.
John F. Manning,
Textualism and the Equity of the Statute, 101 Columbia Law Review 1 (2001)
Recent scholarship has sought to challenge textualist interpretive methods by reviving the ancient English doctrine of the equity of the statute—a doctrine that treated atextual, purposive interpretation as an inherent attribute of judicial authority. In particular, modern proponents contend that this common law doctrine, rather than the currently prevailing faithful agent theory, more accurately reflects the original understanding of "the judicial Power of the United States." In this Article, Professor Manning argues that the English equity of the statute doctrine failed to survive the structural innovations that differentiated the U.S. Constitution from its English common law ancestry. He further contends that while early American history is somewhat mixed, the faithful agent theory came to be the dominant federal interpretive theory quite early in the republic. Finally, Professor Manning argues that, contrary to the critics of textualism, current rejection of the equity of the statute will not lead to rigid and literal interpretive methods.
William N. Eskridge, Jr.,
All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Columbia Law Review 990 (2001)
What understanding of the "judicial Power" would the Founders and their immediate successors possess in regard to statutory interpretation? In this Article, Professor Eskridge explores the background understanding of the judiciary's role in the interpretation of legislative texts, and answers earlier work by scholars like Professor John Manning who have suggested that the separation of powers adopted in the U.S. Constitution mandate an interpretive methodology similar to today's textualism. Reviewing sources such as English precedents, early state court practices, ratifying debates, and the Marshall Court's practices, Eskridge demonstrates that while early statutory interpretation began with the words of the text, it by no means confined its search for meaning to the plain text. He concludes that the early practices, especially the methodology of John Marshall, provide a powerful model, not of an anticipatory textualism, but rather of a sophisticated methodology that knit together text, context, purpose, and democratic and constitutional norms in the service of carrying out the judiciary's constitutional role.
John F. Manning,
Response: Deriving Rules of Statutory Interpretation from the Constitution, 101 Columbia Law Review 1648 (2001)
In an article appearing earlier in this volume, Professor Manning argued that the original understanding of the constitutional structure fits more tightly with the now settled faithful agent theory than with the background English tradition of equitable interpretation. Professor Eskridge replied, also in this volume, that the founding debates and early state and federal cases support various atextual practices that derive from the English tradition. Here, Professor Manning contends that much of their disagreement is attributable to methodological differences. First, focusing on the classification of various interpretive norms, he argues that many early practices cited by Professor Eskridge are consistent with the faithful agent theory and textualism, properly understood. Second, Professor Manning questions the probativeness of state cases in assessing the original understanding of federal judicial power. Third, he argues that scattered and often oblique remarks in the founding debates should carry little weight. Fourth, examining the way early Americans implemented the federal judicial power, Professor Manning stresses that the Marshall Court established an explicit and lasting commitment to what we now call the faithful agent theory.
Professor Molot has written about the judiciary's role in construing statutes.
See Jonathan T. Molot,
Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 Northwestern University Law Review 1239 (2002); Jonathan T. Molot,
The Judicial Perspective In The Administrative State: Reconciling Modern Doctrines of Deference With The Judiciary's Structural Role, 53 Stanford Law Review 1 (2000).
