Statutory Interpretation as Contestatory Democracy

ABSTRACT This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the law. The Article claims that this understanding of statutory interpretation is both descriptively accurate and normatively attractive, and it explores some of the most important implications of recharacterizing statutory interpretation in this fashion. Specifically, this understanding of statutory interpretation sheds new light on the most fundamental problems with textualism, and it provides reasons to give serious consideration to proposals for increased judicial candor in statutory interpretation and for judicial review of at least some types of legislation for due process of law making. TABLE OF CONTENTS INTRODUCTION I. THE COUNTERMAJORITARIAN DIFFICULTY IN STATUTORY INTERPRETATION II. LIBERTY AS NON-DOMINATION AND THE TWO DIMENSIONS OF DEMOCRACY III. CONCEPTUALIZING STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY A. The Authorial Role of an Elected Legislature B. The Intermediate Role of Agencies C. The Editorial Role of the Judiciary 1. Judicial Review of Agency Law Making 2. Statutory Interpretation Without Agencies 3. Statutory Interpretation with Agency Guidance IV. RECOGNIZING STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY V. THE IMPLICATIONS OF STATUTORY INTERPRETATION AS CONTESTATORY DEMOCRACY A. Problems with Textualism B. Reassessing Due Process of Law Making and Judicial Candor CONCLUSION INTRODUCTION Constitutional theorists have devoted considerable attention to the question of what, if anything, justifies the power of judicial review in a democracy. (1) The "countermajoritarian difficulty" questions the legitimacy of an unelected judiciary's authority to invalidate the policy decisions of elected representatives of the people. (2) This problem is unlikely to go away any time soon, considering persistent charges of "judicial activism" against the Rehnquist (3) and Roberts Courts. (4) Meanwhile, the democratic legitimacy of judicial law making in statutory interpretation has received far less attention. This disparity in treatment likely stems from the traditional view that courts do not engage in law making when they interpret statutes. Rather, courts are obligated to serve as faithful agents of the legislature, and thereby carry out the legislature's decisions. (5) The judiciary's authority to interpret statutes is easy to square with democracy from this perspective, because elected officials who are politically accountable to the people are making all of the important policy decisions. (6) The traditional view has been difficult to sustain, however, for a variety of reasons. First, the legal realist movement and contemporary theories of interpretation have highlighted the inherent ambiguity of language and the severe limitations on legislative foresight] It is therefore widely accepted that the legislature does not explicitly resolve every question that arises in statutory interpretation, and that courts have considerable interpretative leeway. Second, the rise of the modern regulatory state has resulted in widespread delegations of broad discretionary authority from the legislature to other institutions, and a candid recognition that the resolution of ambiguities in federal regulatory statutes necessarily involves policy making. …