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Paul Kahn & Kiel Robert Brennan-Marquez: Statutes and Democratic Self-Authorship
Michael Ramsey

Paul Kahn (Yale Law School) and Kiel Robert Brennan-Marquez (Yale Law School) have posted Statutes and Democratic Self-Authorship (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract: 

This Article reframes the longstanding debate over statutory interpretation. That debate tracks a familiar dichotomy: text v. purpose. Both sides of the debate, however, accept the idea that courts are to be the faithful agents of the legislature that authors the laws. We disagree. In our view, in a democracy the people must see themselves as the authors of statutes. This is what allows the rule of law and the “rule of men” — that is, the rule of the people — to coincide. The faithful agency view of statutory construction has confused drafting with authorship: the legislature drafts statutes, but authorship is a social practice of the people holding themselves accountable for the law. The courts’ role, when interpreting a statute, is to cast the law as something that we the people have done together, rather than something done to us by legislators.

This shift in paradigm yields dramatic consequences. Apart from helping to overcome the endless debate between textualism and purposivism, our theory also brings considerable clarity to what courts actually do when they interpret statutes. Moreover, it locates the judicial function squarely within an important strand of the political theory of self-government, stretching from Thomas Hobbes to Jurgen Habermas.

For many decades, commentators have been sympathetic to the idea of self-authorship as applied to “fundamental” law — especially constitutional law. But they have been unable to connect that theory of self-authorship to the construction of “ordinary” laws. The error has two basic sources. First, scholars have focused too much on judicial review as a counter-majoritarian practice; second, they have fixated on voting as the site of democratic participation. Our argument rejects both of these limits, offering a robust account of democracy as the rule of law.