Spinning Legislative Supremacy

Abstract

Legislative supremacy has long been a shibboleth in discourse about statutory interpretation. So much so that it has almost become trite. Although we invoke legislative supremacy with the routineness of intellectual boilerplate-indeed, perhaps because of this routineness-we have come to treat the precept uncritically. Characteristic of the traditional neglect of this precept is its treatment in the classic legal process materials compiled by Professors Henry Hart and Albert Sacks in the 1950s. Although Hart and Sacks broadly recognized the lawmaking supremacy of the legislature, they marginalized that concession by presuming that legislators act as reasonable persons (i.e., like judges), and by emphasizing that the nature of lawmaking is a cooperative process of "reasoned elaboration" by judges, administrators, and other reasonable people who carry out the statute's purpose over time.