Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation

Abstract

An important question of positive and normative legislation theory is what role courts should assume when they interpret statutes (as opposed to the Constitution and the common law). One can imagine the range of roles as a continuum. At one pole is an "archeological approach," in which a court's role is to unearth and enforce the original intent or expectations of the legislature that created the statute. Under this approach, statutory interpretation is an effort to discern the original answer put into the statute. At the other pole is a "free inquiry approach," in which the court's role is to reach the best result, formally unconstrained (though perhaps influenced or persuaded) by the statute's text and legislative history. These two poles represent different aspirations for statutory interpretation. The archeological approach appeals to formal legitimacy (the nonelected judge is not exercising any discretion but is merely carrying out the will of the majoritarian legislature), while the free inquiry approach appeals to functional legitimacy (justice or good results).