Can Legislatures Constrain Judicial Interpretation of Statutes?

An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this article is that all theories of statutory interpretation can only do that much and no more. Tags: legislative intent, statutory interpretation, jurisprudence, deconstruction, doctrinalists [pg561]** An aspect of the current battle over deconstruction [FN1] is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. Thus, a doctrinalist might argue that one can obtain a degree of certainty of meaning of any legal text by referring beyond the text itself to the intention of its author.[FN2] Because no interpreter has direct knowledge of the mind of the author, the author's "intention" seems to constitute another text—a point of reference separate from and in addition to the primary text that is the subject of interpretation. The question is whether we can use this other text—this "evidence" of authorial intent—to pin down the meaning of a statute. Professor Michael Moore is among those who would have liked to use "intention" as a possible way to find determinate meaning in a statute, but after thorough consideration he reluctantly concluded that the meaning of a [pg562] statute cannot be ascertained by recourse to legislative intent.[FN3] His approach was entirely formal.[FN4] In this Article I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. My conclusion will deviate slightly from Moore's, as I believe that a legislature can use its audience's own theories of interpretation to influence probabilities of how its statutes are likely to be interpreted.[FN5] Statutes are certainly the dominant form of law in our times. The theory of positivism tells us that law is a command—one that emanates for the most part from legislatures, but sometimes from prior judicial decisions.[FN6] Accordingly, much of current legal scholarship has been devoted to the question of legislative and constitutional interpretation. [FN7] My starting point, however—in alignment with Stanley Fish [FN8]—is that there can never be a definitive theory or set of rules of interpretation. Here is a simple proof of that proposition. We begin by assuming that which we are trying to disprove: namely, that there is a theory of interpretation—some set of rules or formulae, an essay, a book, several volumes of books, or all the books one reads in three years of law school—that we can consult in order to learn how to interpret any legislative enactment. [FN9] Then we ask: What are the rules for interpreting this assumed theory of interpretation? Must we look to the biographies of the scholars who came up with these rules or formulae or books to resolve questions concerning what they mean in specific [pg563] cases? Or is it impermissible to look to their biographies? Should we interpret their words according to definitions in Black's Law Dictionary or any other legal source? These questions suggest that we need a meta-theory of interpretation to enable us to interpret the rules or formulae or books of interpretation. But such a meta-theory would constitute a text, and thus itself be in need of interpretation. It would require a meta-meta-theory of interpreta-