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02/28/2017

Josh Blackman on Statutory Originalism
Michael Ramsey

At Josh Blackman's Blog: Statutory Originalism.  From the introduction:

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. ...

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”  ...

I think it noteworthy that, even as many people deride constitutional originalism, statutory originalism is not especially controversial.  Yet, as Scalia and Garner made clear in Reading Law,  they are essentially the same enterprise.