5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.