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The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell William N.Eskridge,Jr.* Roger Whetmore is cannibalized by his cave-exploring colleagues in Lon Fuller's hypothetical case of the Speluncean Explorers.1 The survivors are convicted of violating a law making it a crime that one "willfully take the life of another,"2 notwithstanding their defense of necessity.The explorers were trapped in a cave and would have died but for the sustenance of Roger Whetmore.3 An evenly di- vided Supreme Court of Newgarth affirms the convictions.Voting to affirm,Justice Keen follows the plain meaning of the statute and refuses to consider the equitable defense of necessity,4 while Chief Justice Truepenny urges the Chief Executive to grant clemency based upon the defense.5 Voting to reverse,Justice Foster argues that neither the understandings of common society nor the purpose *Professor of Law,Georgetown University Law Center;Visiting Professor of Law, New York University.The intellectual framework utilized in this article will be devel- oped and elaborated in WILLIAM N.ESKRIDGE,JR.,DYNAMIC STATUTORY INTERPRETATION (forthcoming 1994). 1.Lon L.Fuller,The Case of the Speluncean Explorers,62 HARV.L.REV.616 (1949). The discussion in the text is drawn from Fuller's article and will be more fully elaborated infra.For other cases from the hypothetical Supreme Court of Newgarth,see LoN L FULLER,THE PROBLEMS OF JURISPRUDENCE 71-102,628-36 (temp.ed.1949).For excel- lent introductions to Fuller and his philosophy,see RoBERT S.SUMMERS,LON L.FULLER (1984),and Martin P.Golding,Jurisprudence and Legal Philosophy in Twentieth-Century America:Major Themes and Developments,36 J.LEGAL EDUC.441,473-80 (1986). 2.Fuller,supra note 1,at 619 (opinion of Truepenny,CJ). 3. 1d.at618. 4.Id.at 631-37 (opinion of Keen,J.). 5. Id.at 616-19 (opinion of Truepenny,C.J.). August 1993 Vol.61 No.6 1731 HeinOnline--61 Geo.Wash.L.Rev.1731 1992-1993
The Case of the Speluncean Explorers: Twentieth-Century Statutory Interpretation in a Nutshell William N. Eskridge, Jr.* Roger Whetmore is cannibalized by his cave-exploring colleagues in Lon Fuller's hypothetical case of the Speluncean Explorers.1 The survivors are convicted of violating a law making it a crime that one "willfully take the life of another," 2 notwithstanding their defense of necessity. The explorers were trapped in a cave and would have died but for the sustenance of Roger Whetmore.3 An evenly divided Supreme Court of Newgarth affirms the convictions. Voting to affirm, Justice Keen follows the plain meaning of the statute and refuses to consider the equitable defense of necessity, 4 while Chief Justice Truepenny urges the Chief Executive to grant clemency based upon the defense.5 Voting to reverse, Justice Foster argues that neither the understandings of common society nor the purpose * Professor of Law, Georgetown University Law Center; Visiting Professor of Law, New York University. The intellectual framework utilized in this article will be developed and elaborated in WILLIAM N. ESKRIDGEJR., DYNAMIC STATUTORY INTERPRETATION (forthcoming 1994). I. Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (1949). The discussion in the text is drawn from Fuller's article and will be more fully elaborated infra. For other cases from the hypothetical Supreme Court of Newgarth, see LON L. FULLER, THE PROBLEMS OFJURISPRUDENCE 71-102, 628-36 (temp. ed. 1949). For excellent introductions to Fuller and his philosophy, see ROBERT S. SUMMERS, LON L. FULLER (1984), and Martin P. Golding, Jurisprudence and Legal Philosophy in Twentieth-Century America: Major Themes and Developments, 36 J. LEGAL EDUC. 441, 473-80 (1986). 2. Fuller, supra note 1, at 619 (opinion of Truepenny, C.J.). 3. Id. at 618. 4. Id. at 631-37 (opinion of Keen, J.). 5. Id. at 616-19 (opinion of Truepenny, CJ.). August 1993 Vol. 61 No. 6 1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1731 1992-1993
of the statute is served by conviction,6 while Justice Handy votes to reverse as well,relying on virtual consensus in popular opinion.7 Anguished Justice Tatting-the potential tiebreaker-recuses him- self because he cannot choose among the various arguments.8 The Justices'opinions constitute a microcosm of this century's de- bates over the proper way to interpret statutes.A historical under- standing of those debates reveals the breathtaking intellectual accomplishment of Fuller's article,which closes one period of American statutory law (legislative positivism),announces its suc- cessor(the legal process school),and anticipates the arguments that will bedevil the successor in its turn. I. The Pre-History of the Speluncean Explorers:The Positivism- Natural Law Debate in Statutory Interpretation, 1890-1940 One way to situate the case of the Speluncean Explorers is to view it as a moment in the Anglo-American debate over the role of equity and natural law in statutory interpretation.Justice Keen's plain- meaning opinion conceptualizes the enterprise as nothing more than implementing the positive law enacted by the legislature.That view,separating law from politics and morals,is challenged in the opinions of Justices Handy(who argues that law is politics)and Fos- ter(who argues that law implicates morality).The debate between positivism and natural law was a prominent theme of statutory inter- pretation debates in the first half of the century,and Fuller's article is an accessible time capsule of that debate. Before the 1890s,American theories of statutory interpretation largely tracked English theory:Follow the plain meaning of the stat- ute,except in the rare case in which the plain meaning is absurd.9 Thus,American theory was in the main positivist,demanding that courts follow the rules enacted by the legislature.It contained a safety valve-the exception for absurd results-that was jurispru- dentially ambiguous,however.A meaning leading to an absurd re- sult should not be imputed to the legislature either because the result was probably not the legislature's intent(the positivist argument)or because it was not.right,just,or fair (the natural-law argument). This ambiguity is illustrated by the Supreme Court's most cele- brated statutory case of the Lochner era. 6.Id.at 620-26 (opinion of Foster,J.). 7. Id.at 637-44 (opinion of Handy,J.). . Id.at 626-31 (opinion of Tatting,J.). 9.See SIR FORTUNATUS DWARRIS,A GENERAL TREATISE ON STATUTES:THEIR RULES OF CONSTRUCTION AND THE PROPER BOUNDARIES OF LEGISLATION AND OF JUDICIAL INTER- PRETATION 143-44 (Albany,William Gould Sons 1871);G.A.ENDLICH,A CoMMENTARY ON THE INTERPRETATION OF STATUTES 4 (Jersey City,Frederick D.Linn Co.1888); THEODORE SEDGWICK,A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW (New York,Baker,Voorhis Co.,2d ed.1874);J.G.SUTHERLAND,STATUTES AND STATUTORY CONSTRUCTION (Chi- cago,Callaghan Co.1891);see also John Choon Yoo,Note,Marshall's Plan:The Early Supreme Court and Statutory Interprretation,101 YALE L.J.1607,1610 (1992). 1732 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1732 1992-1993
of the statute is served by conviction, 6 while Justice Handy votes to reverse as well, relying on virtual consensus in popular opinion. 7 Anguished Justice Tatting-the potential tiebreaker-recuses himself because he cannot choose among the various arguments.8 TheJustices' opinions constitute a microcosm of this century's debates over the proper way to interpret statutes. A historical understanding of those debates reveals the breathtaking intellectual accomplishment of Fuller's article, which closes one period of American statutory law (legislative positivism), announces its successor (the legal process school), and anticipates the arguments that will bedevil the successor in its turn. I. The Pre-History of the Speluncean Explorers: The PositivismNatural Law Debate in Statutory Interpretation, 1890-1940 One way to situate the case of the Speluncean Explorers is to view it as a moment in the Anglo-American debate over the role of equity and natural law in statutory interpretation. Justice Keen's plainmeaning opinion conceptualizes the enterprise as nothing more than implementing the positive law enacted by the legislature. That view, separating law from politics and morals, is challenged in the opinions ofJustices Handy (who argues that law is politics) and Foster (who argues that law implicates morality). The debate between positivism and natural law was a prominent theme of statutory interpretation debates in the first half of the century, and Fuller's article is an accessible time capsule of that debate. Before the 1890s, American theories of statutory interpretation largely tracked English theory: Follow the plain meaning of the statute, except in the rare case in which the plain meaning is absurd.9 Thus, American theory was in the main positivist, demanding that courts follow the rules enacted by the legislature. It contained a safety valve-the exception for absurd results-that was jurisprudentially ambiguous, however. A meaning leading to an absurd result should not be imputed to the legislature either because the result was probably not the legislature's intent (the positivist argument) or because it was not. right, just, or fair (the natural-law argument). This ambiguity is illustrated by the Supreme Court's most celebrated statutory case of the Lochner era. 6. Id. at 620-26 (opinion of Foster, J.). 7. Id. at 637-44 (opinion of Handy, J.). 8. Id. at 626-31 (opinion of Tatting, J.). 9. See SIR FORTUNATUS DWARRIS, A GENERAL TREATISE ON STATUTES: THEIR RULES OF CONSTRUCTION AND THE PROPER BOUNDARIES OF LEGISLATION AND OFJUDICIAL INTERPRETATION 143-44 (Albany, William Gould & Sons 1871); G.A. ENDLICH, A COMMENTARY ON THE INTERPRETATION OF STATUTES 4 (Jersey City, Frederick D. Linn & Co. 1888); THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW (New York, Baker, Voorhis & Co., 2d ed. 1874); J.G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION (Chicago, Callaghan & Co. 1891); see also John Choon Yoo, Note, Marshall's Plan: The Early Supreme Court and Statutory Interpretation, 101 YALE L.J. 1607, 1610 (1992). 1732 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1732 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW In 1892,the Supreme Court decided Church of the Holy Trinity v. United States.10 The church had hired an English clergyman to be its rector and provided for his transportation to the United States.11 The latter action appeared to violate a federal immigration statute making it"unlawful for any person...in any manner whatsoever,to prepay the transportation,or in any way assist or encourage the im- portation or migration of any alien or aliens,any foreigner or for- eigners,into the United States...to perform labor or service of any kind in the United States."12 Although the prohibition against em- ployment contracts facilitating immigration was broad and filled with loophole-plugging language,1s the Supreme Court refused to interpret the statute to exclude the rector from entering the United States.The Court held"that a thing may be within the letter of the statute and yet not within the statute,because not within its spirit, nor within the intention of its makers."14 To determine the statute's "spirit,"the Court first relied on positive evidence,mainly the stat- ute's legislative history,which suggested that the words"labor and service'”really should have read“'manual labor'or‘manual ser- vice'"and assuredly were not meant to cover"brain toilers."15 The Court's opinion,however,then proceeded to a natural-law appeal, arguing that our history as a"Christian nation"should remove all doubt that the statute might intend to obstruct efforts to bring reli- gious leaders into the country.16 Holy Trinity Church was a prolegomenon to the Lochner era,in which the Court expressed a constitutional hostility to socio-eco- nomic regulatory statutes that displaced old common-law rules.17 The judicial philosophy of the Lochner era,scorned by Professor Roscoe Pound as"mechanical jurisprudence,"18 was one nostalgic for the economic,libertarian values of the common law,which 10.143U.S.457(1892). 11.1d.at457-58. 12.Act of Feb.26,1885,ch.164,23 Stat.332,repealed by Act of June 27,1952,ch. 477,§403(a)(2),66Stat.166,273. 13. Elsewhere,for example,the statute listed specific occupations excluded from the prohibition,and clergy were not mentioned.Id.$5,23 Stat.at 333(excepting from the statute professional actors,artists,lecturers,and singers,among others). 14.Holy Trinity Church,143 U.S.at 459. 15.Id.at 464.It appears from the case that the committee was operating under end-of-session pressure and did not believe it necessary to vote an amendment to the statute.Id.The Supreme Court also relied on the statute's title and the circumstances of its adoption to hold it inapplicable to "brain toilers."Id.at 465. 16.Id.at 471;see also id.at 465 ("[N]o purpose or action against religion can be imputed to any legislation,state or national,because this is a religious people.").The author of the opinion,Justice David Brewer,was the evangelical son of Christian missionaries. 17.The standard citation is Lochner v.New York,198 U.S.45 (1905),in which Justice Brewer and his allies struck down a statute setting maximum work hours for bakers in New York. 18.Roscoe Pound,Mechanical Jurisprudence,8 CoLUM.L.REV.605,615-16 (1908). 1993] 1733 HeinOnline--61 Geo.Wash.L.Rev.1733 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW In 1892, the Supreme Court decided Church of the Holy Trinity v. United States. 1 0 The church had hired an English clergyman to be its rector and provided for his transportation to the United States.11 The latter action appeared to violate a federal immigration statute making it "unlawful for any person.., in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States... to perform lab6r or service of any kind in the United States."'12 Although the prohibition against employment contracts facilitating immigration was broad and filled with loophole-plugging language, 13 the Supreme Court refused to interpret the statute to exclude the rector from entering the United States. The Court held "that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers."' 4 To determine the statute's "spirit," the Court first relied on positive evidence, mainly the statute's legislative history, which suggested that the words " 'labor and service' " really should have read " 'manual labor' or 'manual service' " and assuredly were not meant to cover "brain toilers." 15 The Court's opinion, however, then proceeded to a natural-law appeal, arguing that our history as a "Christian nation" should remove all doubt that the statute might intend to obstruct efforts to bring religious leaders into the country. 16 Holy Trinity Church was a prolegomenon to the Lochner era, in which the Court expressed a constitutional hostility to socio-economic regulatory statutes that displaced old common-law rules.' 7 The judicial philosophy of the Lochner era, scorned by Professor Roscoe Pound as "mechanical jurisprudence,"' 18 was one nostalgic for the economic, libertarian values of the common law, which 10. 143 U.S. 457 (1892). 11. Id at 457-58. 12. Act of Feb. 26, 1885, ch. 164, 23 Stat. 332, repealed by Act ofJune 27, 1952, ch. 477, § 403(a)(2), 66 Stat. 166, 273. 13. Elsewhere, for example, the statute listed specific occupations excluded from the prohibition, and clergy were not mentioned. Id. § 5, 23 Stat. at 333 (excepting from the statute professional actors, artists, lecturers, and singers, among others). 14. Holy Trinity Church, 143 U.S. at 459. 15. Id at 464. It appears from the case that the committee was operating under end-of-session pressure and did not believe it necessary to vote an amendment to the statute. Id. The Supreme Court also relied on the statute's title and the circumstances of its adoption to hold it inapplicable to "brain toilers." Id. at 465. 16. Id. at 471; see also id. at 465 ("[N]o purpose or action against religion can be imputed to any legislation, state or national, because this is a religious people."). The author of the opinion, Justice David Brewer, was the evangelical son of Christian missionaries. 17. The standard citation is Lochner v. New York, 198 U.S. 45 (1905), in which Justice Brewer and his allies struck down a statute setting maximum work hours for bakers in New York. 18. Roscoe Pound, Mechanical Jurisprudence, 8 COLUM. L. REv. 605, 615-16 (1908). 1993] 1733 HeinOnline -- 61 Geo. Wash. L. Rev. 1733 1992-1993
judges felt were under assault from new regulatory statutes.19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional in- terpretation.?0 The common law had long been a natural-law surro- gate in statutory interpretation,and a nostalgic Supreme Court pursued that theme episodically for two generations,from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist:They contended that the common law was no longer sufficient to the needs of a complex,strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society,and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy.Pound argued,for example, that the importation by judges of their libertarian values into stat- utes was "spurious"statutory interpretation and inconsistent with the proper role of courts in a democracy.21 According to Pound,the proper method of statutory interpretation was an "imaginative re- construction"of the legislature's specific intent.22 That view had many adherents among progressive jurists2s but was not so jurispru- dentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes,Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound,Holmes was a positivist who astringently believed in the separation of law and morals.Like Pound,he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound,Common Law and Legislation,21 HARV.L.REv.383,384-85 (1908). 20.Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co.v.Journeymen Stonecutters'Ass'n,274 U.S.37,39 (1927)(narrowing interpretation of Clayton Act's labor exemptions),Duplex Printing Press Co.v.Deering, 254 U.S.443,446-48 (1921)(similar),Caminetti v.United States,242 U.S.470,491 (1917)(expansive interpretation of morals statute to cover fornication),Loewe v. Lawler,208 U.S.274,292-93(1908)(expansive interpretation of Sherman Act to cover labor unions),Northern Sec.Co.v.United States,193 U.S.197,327 (1904)(expansive interpretation of Sherman Act to cover corporate size),and United States v.E.C.Knight Co.,156 U.S.1,16-17 (1895)(narrowing interpretation of Sherman Act to exempt man- ufacturing monopolies). 21.Roscoe Pound,Spurious Interpretation,7 CoLUM.L.REV.379,382 (1907). 22.For Pound,the role of the judge should be to discover "what the law-maker meant by assuming his position,in the surroundings in which he acted,and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them,his intention with respect to the particular point in controversy."Id.at 381;see also Roscoe Pound,Enforcement of Law,20 GREEN BAG 401 (1908).Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court,90 F.248,251 (C.C.S.D.1owa1898). 23.Judge Learned Hand was perhaps the most notable of these.See Fishgold v. Sullivan Drydock Repair Corp.,154 F.2d 785,788-91 (2d Cir.),af'd,328 U.S.275 (1946);Lehigh Valley Coal Co.v.Yensavage,218 F.547,553 (2d Cir.1914),rert.denied, 235U.S.705(1915). 24."We do not inquire what the legislature meant;we ask only what the statute means."Oliver Wendell Holmes,The Theory of Legal Interpretation,12 HARV.L.REV.417, 419(1899). 1734 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1734 1992-1993
judges felt were under assault from new regulatory statutes. 19 The conservatives of the bench and bar in that period expressed their arcadian philosophy through statutory as well as constitutional interpretation. 20 The common law had long been a natural-law surrogate in statutory interpretation, and a nostalgic Supreme Court pursued that theme episodically for two generations, from 1892 to 1938. The rallying cry of anti-Court progressives during this period was distinctly positivist: They contended that the common law was no longer sufficient to the needs of a complex, strife-ridden society, that the legislature was in a better position to gather facts and make judgments necessary for such a society, and that the role of courts lay in following these progressive commands of the legislature and abandoning their Lochnerian obduracy. Pound argued, for example, that the importation by judges of their libertarian values into statutes was "spurious" statutory interpretation and inconsistent with the proper role of courts in a democracy. 2' According to Pound, the proper method of statutory interpretation was an "imaginative reconstruction" of the legislature's specific intent.22 That view had many adherents among progressive jurists23 but was not sojurisprudentially sophisticated as the progressive theory of Justice Oliver Wendell Holmes, Jr. Justice Holmes believed that statutory interpretation was usually just an exercise in determining the statute's ordinary meaning.24 Like Pound, Holmes was a positivist who astringently believed in the separation of law and morals. Like Pound, he rejected as spurious a judge's effort to read his own values into statutes and believed the judge ought to bow to legislation expressing authentic social forces, 19. See Roscoe Pound, Common Law and Legislation, 21 HARv. L. REV. 383, 384-85 (1908). 20. Some of the leading cases of arcadian statutory interpretation include Bedford Cut Stone Co. v. Journeymen Stonecutters' Ass'n, 274 U.S. 37, 39 (1927) (narrowing interpretation of Clayton Act's labor exemptions), Duplex Printing Press Co. v. Deering, 254 U.S. 443, 446-48 (1921) (similar), Caminetti v. United States, 242 U.S. 470, 491 (1917) (expansive interpretation of morals statute to cover fornication), Loewe v. Lawler, 208 U.S. 274, 292-93 (1908) (expansive interpretation of Sherman Act to cover labor unions), Northern Sec. Co. v. United States, 193 U.S. 197, 327 (1904) (expansive interpretation of Sherman Act to cover corporate size), and United States v. E.C. Knight Co., 156 U.S. 1, 16-17 (1895) (narrowing interpretation of Sherman Act to exempt manufacturing monopolies). 21. Roscoe Pound, Spurious Interpretation, 7 COLUM. L. REv. 379, 382 (1907). 22. For Pound, the role of the judge should be to discover "what the law-maker meant by assuming his position, in the surroundings in which he acted, and endeavoring to gather from the mischiefs he had to meet and the remedy by which he sought to meet them, his intention with respect to the particular point in controversy." Id. at 381; see also Roscoe Pound, Enforcement of Law, 20 GREEN BAG 401 (1908). Pound himself was following Judge Sanborn's formula in In re Clerkship of Circuit Court, 90 F. 248, 251 (C.C.S.D. Iowa 1898). 23. Judge Learned Hand was perhaps the most notable of these. See Fishgold v. Sullivan Drydock & Repair Corp., 154 F.2d 785, 788-91 (2d Cir.), aff'd, 328 U.S. 275 (1946); Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d Cir. 1914), cert. denied, 235 U.S. 705 (1915). 24. "We do not inquire what the legislature meant; we ask only what the statute means." Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899). 1734 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1734 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW such as the labor movement and nosey social regulations.25 Unlike Pound,however,Holmes emphasized the importance of plain meaning,not only for reasons of democratic theory,but also for rule-of-law reasons.According to Holmes,our polity could not be a government of laws and not men unless legal standards were exter- nal to the decisionmaker.26 For the same reasons that Holmes fa- vored a "reasonable man"'standard in torts cases,he advocated a "normal speaker"theory of plain meaning.27 The legislature-grounded positivism of Holmes's plain-meaning theory is similar to Justice Keen's opinion in The Case of the Speluncean Explorers.28 Keen makes quite a show of segregating his own moral view-that the defendants should not be punished-from his re- sponsibility as a judge: [A]question that I wish to put to one side is that of deciding whether what these men did was“right''or“wrong,”“wicked'or "good."That is...a question that is irrelevant to the discharge of my office as a judge sworn to apply,not my conceptions of mo- rality,but the law of the land.... Whence arise all the difficulties of the case...The difficul- ties,in whatever tortured form they may present themselves,all trace back to a single source,and that is a failure to distinguish the legal from the moral aspects of this case.To put it bluntly,my brothers do not like the fact that the written law requires the con- viction of these defendants.Neither do I,but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth.29 In a representative democracy,the law is the statutes enacted by the 25."I always say that I regard legislation like buying a ticket to the theatre.If you're sure you want to go to the show and have money to pay for it there is an end of the matter.I may think you foolish to want to go,but that has nothing to do with my duty." Letter from Oliver Wendell Holmes,Jr.,to Franklin Ford(Apr.6,1911),quoted in Daniel R.Ernst,The Critical Tradition in the Writing of Americal Legal History,102 YALE LJ.1019, 1053-54(1993)(book review). 26.OLIVER WENDELL HOLMES,JR.,THE COMMON LAW 41,44 (Boston,Little Brown &Co.1881). 27.Holmes,supra note 24,at 417-18. [WJe ask,not what this man meant,but what those words would mean in the mouth of a normal speaker of English,using them in the circumstances in which they were used....[T]he normal speaker of English is merely a special variety,a literary form,so to speak,of our old friend the prudent man.He is external to the particular writer,and a reference to him as the criterion is simply another instance of the externality of the law. Id. 28.Fuller writes that the Justices are "as mythical as the facts"and that,by "seek[ing]to trace out contemporary resemblances where none is intended or contem- plated,the reader should be warned that he is engaged in a frolic of his own."Fuller, supra note 1,at 645 (Postscript). 29.Id.at 632-33 (opinion of Keen,J.). 1993] 1735 HeinOnline--61 Geo.Wash.L.Rev.1735 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW such as the labor movement and nosey social regulations. 25 Unlike Pound, however, Holmes emphasized the importance of plain meaning, not only for reasons of democratic theory, but also for rule-of-law reasons. According to Holmes, our polity could not be a government of laws and not men unless legal standards were external to the decisionmaker 2 6 For the same reasons that Holmes favored a "reasonable man" standard in torts cases, he advocated a "normal speaker" theory of plain meaning. 27 The legislature-grounded positivism of Holmes's plain-meaning theory is similar tojustice Keen's opinion in The Case of the Speluncean Explorers.28 Keen makes quite a show of segregating his own moral view-that the defendants should not be punished-from his responsibility as a judge: [A] question that I wish to put to one side is that of deciding whether what these men did was "right" or "wrong," "wicked" or "good." That is ... a question that is irrelevant to the discharge of my office as ajudge sworn to apply, not my conceptions of morality, but the law of the land.... Whence arise all the difficulties of the case ... ? The difficulties, in whatever tortured form they may present themselves, all trace back to a single source, and that is a failure to distinguish the legal from the moral aspects of this case. To put it bluntly, my brothers do not like the fact that the written law requires the conviction of these defendants. Neither do I, but unlike my brothers I respect the obligations of an office that requires me to put my personal predilections out of my mind when I come to interpret and apply the law of this Commonwealth. 29 In a representative democracy, the law is the statutes enacted by the 25. "I always say that I regard legislation like buying a ticket to the theatre. If you're sure you want to go to the show and have money to pay for it there is an end of the matter. I may think you foolish to want to go, but that has nothing to do with my duty." Letter from Oliver Wendell Holmes, Jr., to Franklin Ford (Apr. 6, 1911), quoted in Daniel R. Ernst, The Critical Tradition in the Writing of Americal Legal History, 102 YALE LJ. 1019, 1053-54 (1993) (book review). 26. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 41, 44 (Boston, Little Brown & Co. 1881). 27. Holmes, supra note 24, at 417-18. [W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used .... [Tihe normal speaker of English is merely a special variety, a literary form, so to speak, of our old friend the prudent man. He is external to the particular writer, and a reference to him as the criterion is simply another instance of the externality of the law. Id. 28. Fuller writes that the Justices are "as mythical as the facts" and that, by "seek[ing] to trace out contemporary resemblances where none is intended or contemplated, the reader should be warned that he is engaged in a frolic of his own." Fuller, supra note 1, at 645 (Postscript). 29. Id. at 632-33 (opinion of Keen, J.). 1993] 1735 HeinOnline -- 61 Geo. Wash. L. Rev. 1735 1992-1993
elected representatives in the legislature,which is supreme in law- making."From that principle [of legislative supremacy]flows the obligation of the judiciary to enforce faithfully the written law,and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice."s0 For Keen,as for Holmes,bending the statute to accom- modate the members of the Speluncean Society would be a sacrifice of law's objectivity and hence of both its democratic legitimacy and its usefulness. Although Keen's approach to statutory interpretation was (when Holmes was writing)a progressive approach,it was one that had been undermined by the time Fuller wrote The Case of the Speluncean Explorers.The realists in the 1920s and 1930s had debunked the possibility of objectivity in statutory or any other kind of interpreta- tion,arguing that judges had an enormous lawmaking discretion that was little confined by statutory plain meaning or imaginative reconstruction.31 The realists unsettled the statutory interpretation debate.Although the realists had no use for Lockner-style conserva- tives or natural law,neither were they simple legislative supremacists,as Pound and Holmes were.The realists viewed the sovereign's rules as the results of the judicial and not the legislative process(i.e.,because there is no law until the statute has been inter- preteds2)and also tended to accept the tenets of ethical positiv- ism.33 Moreover,because they believed that judges have great leeway in reading their own policy preferences into statutes,the realists emphasized the importance of instrumental,policy-driven considerations. In The Case of the Speluncean Explorers,Justice Handy reflects the realists'disdain for the "obscuring curtain of legalisms"and"ab- stract theory"s4 and their endorsement of doctrinal solutions that 30.Idat633. 31.See BENJAMIN N.CARDOZO,THE NATURE OF THE JUDICIAL PROCESS 166(1921)("I have grown to see that the [judicial]process in its highest reaches is not discovery but creation .. .")MORRIS R.COHEN,LAW AND THE SOCIAL ORDER:ESSAYS IN LEGAL PHI- LosoPHY 131(1933)("The meaning of a statute...is a juridical creation in the light of social demands.");Charles P.Curtis,A Better Theory of Legal Interpretation,3 VAND.L.REV. 407,407-08(1950)(arguing that"the belief that the interpretation of legal documents consists essentially in a search for the intention of the author"is "orthodox...yet... quite wrong");Jerome Frank,Words and Music:Some Remarks on Statutory Interpretation,47 CoLUM.L.REv.1259,1267-70(1947)("We do not usually speak of [legislative]'delega- tion'to the judiciary,but the fact of such delegation is undeniable,whatever the label."); K.N.Llewellyn,The Constitution as an Institution,34 CoLUM.L.REV.1,31-40 (1934);see also JoHN C.GRAY,THE NATURE AND SOURCES OF THE LAW 124-25(2d ed.1927)(a pre- realist taking the position that"it is only words that the legislature utters;it is for the courts to say what those words mean;that is,it is for them to interpret legislative acts"). 32.Max Radin,Statutory Interpretation,43 HARV.L.REV.863,870-72 (1930). 33.See,e.g.,Karl N.Llewellyn,A Realistic Jurisprudence-The Next Step,30 CoLUM.L. REv.431,431-33(1930).By"ethical positivism,"'I mean the view that law is the com- mand of the sovereign and that the goodness of law(the "ought")is a matter separate from what the law actually requires(the "is").See Owen M.Fiss,The Varieties of Positivism, 90 YALE LJ.1007,1007(1981). 34.Fuller,supra note 1,at 637 (opinion of Handy,J.). 1736 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1736 1992-1993
elected representatives in the legislature, which is supreme in lawmaking. "From that principle [of legislative supremacy] flows the obligation of the judiciary to enforce faithfully the written law, and to interpret that law in accordance with its plain meaning without reference to our personal desires or our individual conceptions of justice."3 0 For Keen, as for Holmes, bending the statute to accommodate the members of the Speluncean Society would be a sacrifice of law's objectivity and hence of both its democratic legitimacy and its usefulness. Although Keen's approach to statutory interpretation was (when Holmes was writing) a progressive approach, it was one that had been undermined by the time Fuller wrote The Case of the Speluncean Explorers. The realists in the 1920s and 1930s had debunked the possibility of objectivity in statutory or any other kind of interpretation, arguing that judges had an enormous lawmaking discretion that was little confined by statutory plain meaning or imaginative reconstruction.31 The realists unsettled the statutory interpretation debate. Although the realists had no use for Lochner-style conservatives or natural law, neither were they simple legislative supremacists, as Pound and Holmes were. The realists viewed the sovereign's rules as the results of the judicial and not the legislative process (i.e., because there is no law until the statute has been interpreted3 2) and also tended to accept the tenets of ethical positivism.33 Moreover, because they believed that judges have great leeway in reading their own policy preferences into statutes, the realists emphasized the importance of instrumental, policy-driven considerations. In The Case of the Speluncean Explorers, Justice Handy reflects the realists' disdain for the "obscuring curtain of legalisms" and "abstract theory"34 and their endorsement of doctrinal solutions that 30. Id. at 633. 31. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 166 (192 1) ("I have grown to see that the [udiciall process in its highest reaches is not discovery but creation .... "); MORRIS R. COHEN, LAW AND THE SOCIAL ORDER: ESSAYS IN LEGAL PHILOSOPHY 131 (1933) ("The meaning of a statute... is ajuridical creation in the light of social demands."); Charles P. Curtis, A Better Theory of Legal Interpretation, 3 VAND. L. REV. 407, 407-08 (1950) (arguing that "the belief that the interpretation of legal documents consists essentially in a search for the intention of the author" is "orthodox.. . yet... quite wrong");Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1267-70 (1947) ("We do not usually speak of [legislative] 'delegation' to the judiciary, but the fact of such delegation is undeniable, whatever the label."); K.N. Llewellyn, The Constitution as an Institution, 34 COLUM. L. REV. 1, 31-40 (1934); see also JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW 124-25 (2d ed. 1927) (a prerealist taking the position that "it is only words that the legislature utters; it is for the courts to say what those words mean; that is, it is for them to interpret legislative acts"). 32. Max Radin, Statutory Interpretation, 43 HARv. L. REv. 863, 870-72 (1930). 33. See, e.g., Karl N. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 COLUM. L. REV. 431, 431-33 (1930). By "ethical positivism," I mean the view that law is the command of the sovereign and that the goodness of law (the "ought") is a matter separate from what the law actually requires (the "is"). See Owen M. Fiss, The Varieties of Positivism, 90 YALE L.J. 1007, 1007 (1981). 34. Fuller, supra note 1, at 637 (opinion of Handy, J.). 1736 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1736 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."85 Handy is Keen's dopple- ganger:Keen emphasizes the stability and externality of law,and Handy emphasizes its mobility and contingency.36 Keen rigidly sep- arates legal interpretation from politics,and Handy responds by making legal interpretation an exercise in practical politics (stressing,for example,the role of popular opinion in his vote to acquit37).Keen is serious and pompous while Handy winks at the reader,deflates the pretensions of his colleagues,and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s,when realism was overtaking the philosophies of Pound and Holmes,a debate between Keen's law/formalism and Handy's poli- tics/functionalism might have been the centerpiece of the case.In- stead,the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s.The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart,young judges and administrators(many of whom were prominent realists)were making policy.Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natu- ral law,positivism found itself intellectually vulnerable.As Ameri- can intellectuals learned about European fascism in the 1930s,the more restive they became with a positivist separation of law and morals.39 Were Nazi decrees"law"in the same way that New Deal statutes were?Were decrees that basically attacked an entire seg- ment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35.1d.at639. 36.I believe theirs is an uneven match,however.I read Keen's opinion as a serious intellectual statement refecting the respect that Holmes still engendered at the Harvard Law School in the 1940s.I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism,see Lon L.Fuller,American Legal Real- ism,82 U.PA.L.REv.429 (1934)(stating that realism "reveals rather conspicuously the defects of youth"),and the Harvard Law School's tendency to consider the realist pro- ject as having presented nothing particularly new or productive,see generally Robert S. Summers,Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law,92 HARV. L.REv.433 (1978)(comparing the views of Fuller with dominant theories of law). 37.Fuller,supra note 1,at 639,643-44 (opinion of Handy,J.). 38.Foster's is the opinion that best resonates with Fuller's own work,see LoN L. FULLER,THE LAW IN QUEST OF ITSELF (1940);FULLER,supra note 1,at 693-743;Lon L. Fuller,American Legal History at Mid-Century,6 J.LEGAL EDUC.457 (1954);Lon L.Fuller, Reason and Fiat in Case Law,59 HARV.L.REV.376 (1946).It is the second opinion in the case(following the Chief Justice's,which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously),and it is the primary focus of the critical responses in the opinions of Justices Tatting,Keen, and Handy. 39.This story is told in EDWARD A.PURCELL,JR.,THE CRISIS OF DEMOCRATIC THE- ORY:SCIENTIFIC NATURALISM THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline--61 Geo.Wash.L.Rev.1737 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW reflect "efficiency and common sense."3 5 Handy is Keen's doppleginger: Keen emphasizes the stability and externality of law, and Handy emphasizes its mobility and contingency.3 6 Keen rigidly separates legal interpretation from politics, and Handy responds by making legal interpretation an exercise in practical politics (stressing, for example, the role of popular opinion in his vote to acquit 37). Keen is serious and pompous while Handy winks at the reader, deflates the pretensions of his colleagues, and treats the case like a game. If The Case of the Speluncean Explorers had been written in the early 1930s, when realism was overtaking the philosophies of Pound and Holmes, a debate between Keen's law/formalism and Handy's politics/functionalism might have been the centerpiece of the case. Instead, the centerpiece is Justice Foster's opinion,38 which specifically reflects intellectual developments from the end of the 1930s. The New Deal ensured the complete defeat of mechanical jurisprudence and offered the prospect of a very attractive positive law regime in which smart, young judges and administrators (many of whom were prominent realists) were making policy. Yet at the very moment of progressive positivism's electoral triumph over Lochner-based natural law, positivism found itself intellectually vulnerable. As American intellectuals learned about European fascism in the 1930s, the more restive they became with a positivist separation of law and morals.3 9 Were Nazi decrees "law" in the same way that New Deal statutes were? Were decrees that basically attacked an entire segment of the body politic entitled to obedience? Like others on the eve of America's entry into World War II, Fuller himself invoked these quandaries as an occasion to question 35. Id. at 639. 36. I believe theirs is an uneven match, however. I read Keen's opinion as a serious intellectual statement reflecting the respect that Holmes still engendered at the Harvard Law School in the 1940s. I read Handy's opinion as more of a caricature of realism, reflecting both Fuller's ambivalence about realism, see Lon L. Fuller, American Legal Realism, 82 U. PA. L. REV. 429 (1934) (stating that realism "reveals rather conspicuously the defects of youth"), and the Harvard Law School's tendency to consider the realist project as having presented nothing particularly new or productive, see generally Robert S. Summers, Professor Fuller's Jurisprudence and America's Dominant Philosophy of Law, 92 HARv. L. REV. 433 (1978) (comparing the views of Fuller with dominant theories of law). 37. Fuller, supra note 1, at 639, 643-44 (opinion of Handy, J.). 38. Foster's is the opinion that best resonates with Fuller's own work, see LON L. FULLER, THE LAW IN QUEST OF ITSELF (1940); FULLER, supra note 1, at 693-743; Lon L. Fuller, American Legal Histoy at Mid-Century, 6J. LEGAL EDUC. 457 (1954); Lon L. Fuller, Reason and Fiat in Case Law, 59 HARv. L. REV. 376 (1946). It is the second opinion in the case (following the ChiefJustice's, which simply states the facts and then rests its legal analysis on a fatuous appeal to executive clemency that no one else takes seriously), and it is the primary focus of the critical responses in the opinions ofJustices Tatting, Keen, and Handy. 39. This story is told in EDWARD A. PURCELL, JR., THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM & THE PROBLEM OF VALUE 159-78 (1973). 1993] 1737 HeinOnline -- 61 Geo. Wash. L. Rev. 1737 1992-1993
ethical positivism in law.In his 1940 Rosenthal Lectures,Fuller suggested,first,that decrees such as those of the Nazis were not binding law,because the conditions of human coexistence ceased to exist for most of the citizenry.40 Second,he argued that there is no sharp distinction between the“is”and“ought'in law.4 Both sug- gestions show up nine years later in the opinion of Justice Foster. Accordingly,one reason that Foster gives for acquitting the de- fendants is that the positive law ceased to apply to them when they were thrust back into a"state of nature"by their entrapment in the cave: Whatever particular objects may be sought by the various branches of our law,it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common.When the assumption that men may live together loses its truth,as it obviously did in this extraordinary situation where life only became possible by the taking of life,then the basic premises underlying our whole legal order have lost their mean- ing and force.42 Under pure natural law,Foster asserts,the defendants acted out of necessity and were "guiltless of any crime"as a result.4s Foster asserts a second and independent reason for voting to ac- quit,one more subtly echoing natural-law influences.Even conced- ing that the explorers'conduct "violates the literal wording of the statute,"he argued that one"may break the letter of the law without breaking the law itself"and that a law must"be interpreted reason- ably,in the light of its evident purpose."44 To a reader of the 1920s and 1930s,Foster's statement would have been an uncomfortable echo of the natural law in Holy Trinity,with Foster's rejection of the law's“letter''for the law's“purpose”(a seeming euphemism for Ho的y Trinity's“spirit'").Could the invocation of a“℃hristian nation” be far behind?By the late 1940s,readers would have been more comfortable with Foster's second argument,whose intellectual background and relationship to his first argument I shall now ex- plore in detail. II.After the Positivism/Natural Law Debate:The Case of the Speluncean Explorers and the Legal Process Synthesis, 1940-1958 American law faced an intellectual crisis on the eve of World War II.Formalist theories of law,like those of Newgarth's Justice Keen, were vulnerable to realist attacks concerning their objectivity.On the other hand,realist theories,like the view of Justice Handy that 40.See FULLER,supra note 38,at 122-25. 41.Id.at4-15. 42.Fuller,supra note 1,at 621 (opinion of Foster,J.). 43.1d. 44.Id.at 624.To support his interpretation of the law's purpose,Justice Foster invokes the exception to murder statutes for self-defense.Id.at 624-25. 1738 [voL.61:1731 HeinOnline--61 Geo.Wash.L.Rev.1738 1992-1993
ethical positivism in law. In his 1940 Rosenthal Lectures, Fuller suggested, first, that decrees such as those of the Nazis were not binding law, because the conditions of human coexistence ceased to exist for most of the citizenry.40 Second, he argued that there is no sharp distinction between the "is" and "ought" in law.4' Both suggestions show up nine years later in the opinion of Justice Foster. Accordingly, one reason that Foster gives for acquitting the defendants is that the positive law ceased to apply to them when they were thrust back into a "state of nature" by their entrapment in the cave: Whatever particular objects may be sought by the various branches of our law, it is apparent on reflection that all of them are directed toward facilitating and improving men's coexistence and regulating with fairness and equity the relations of their life in common. When the assumption that men may live together loses its truth, as it obviously did in this extraordinary situation where life only became possible by the taking of life, then the basic premises underlying our whole legal order have lost their meaning and force.42 Under pure natural law, Foster asserts, the defendants acted out of necessity and were "guiltless of any crime" as a result.45 Foster asserts a second and independent reason for voting to acquit, one more subtly echoing natural-law influences. Even conceding that the explorers' conduct "violates the literal wording of the statute," he argued that one "may break the letter of the law without breaking the law itself" and that a law must "be interpreted reasonably, in the light of its evident purpose." 44 To a reader of the 1920s and 1930s, Foster's statement would have been an uncomfortable echo of the natural law in Holy Trinity, with Foster's rejection of the law's "letter" for the law's "purpose" (a seeming euphemism for Holy Trinity's "spirit"). Could the invocation of a "Christian nation" be far behind? By the late 1940s, readers would have been more comfortable with Foster's second argument, whose intellectual background and relationship to his first argument I shall now explore in detail. II. After the Positivism/Natural Law Debate: The Case of the Speluncean Explorers and the Legal Process Synthesis, 1940-1958 American law faced an intellectual crisis on the eve of World War II. Formalist theories of law, like those of Newgarth's Justice Keen, were vulnerable to realist attacks concerning their objectivity. On the other hand, realist theories, like the view of Justice Handy that 40. See FULLER, supra note 38, at 122-25. 41. Id. at 4-15. 42. Fuller, supra note 1, at 621 (opinion of Foster, J.). 43. Id. 44. lId at 624. To support his interpretation of the law's purpose, Justice Foster invokes the exception to murder statutes for self-defense. Id. at 624-25. 1738 [VOL. 61:1731 HeinOnline -- 61 Geo. Wash. L. Rev. 1738 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW judges are nothing more than another set of political actors,seemed inconsistent with traditional theories of democracy or the rule of law.The shortcomings of both formalism and realism gave rise to a demand for a theory of statutory interpretation that tied law to rea- son as well as to democracy and rules.Judges and academics grap- pled with this conundrum,and a tentative answer emerged in the period from 1939 to 1942:Statutory interpretation must be in- formed by the purposive role of state actors.45 Although earlier scholars had acknowledged the idea that legislative purpose was im- portant to statutory interpretation,and the Supreme Court had oc- casionally invoked purpose-based reasoning,46 this idea did not become central until 1939-1942,after the New Deal had been politi- cally consolidated,just as the New Deal majority was forming on the Supreme Court,and right before the United States entered World War II. The new generation of scholars and judges accepted the realist argument that unelected officials do engage in lawmaking,but they suggested that such lawmaking had some direction from democratic sources."Legislation has an aim,"asserted Justice Felix Frank- furter."[Ilt seeks to obviate some mischief,to supply an inade- quacy,to effect a change of policy,to formulate a plan of government."47 Hence,added Professor Harry Willmer Jones, "[t]he law'of a statute is not complete when the legislative stamp has been put upon it;subsequent judicial decisions add meaning 45.The primary articles,in order of their publication,are Harry W.Jones,The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes,25 WASH.U.L.Q.2 (1939),Frederick J.de Sloovere,Extrinsic Aids in the Interpretation of Statutes,88 U.PA.L. REV.527(1940)[hereinafter de Sloovere,Extrinsic Aids],Harry W.Jones,Extrinsic Aids in the Federal Courts,25 IowA L.REV.737 (1940)[hereinafter Jones,Extrinsic Aids],Harry W. Jones,Statutory Doubis and Legislative Intention,40 CoLUM.L.REV.957 (1940),Charles B. Nutting,The Ambiguity of Unambiguous Statutes,24 MINN.L.REV.509 (1940),and Max Radin,A Short Way with Statutes,56 HARV.L.REV.388 (1942).For later works in the same vein,see Frank,supra note 31,and Felix Frankfurter,Some Reflections on the Reading of Statutes,47 CoLUM.L.REV.527 (1947). My assertion about the dramatic break in the literature is based in part on the dra- matic surge in articles with strikingly similar arguments in or around 1940 and in part on the different emphasis in these articles.Compare,for example,de Sloovere's 1940 arti- cle emphasizing legislative purpose,see de Sloovere,Extrinsic Aids,supra,at 532-33,with his earlier work emphasizing imaginative reconstruction,Frederick J.de Sloovere,Pre- liminary Questions in Statutory Interpretation,9 N.Y.U.L.Q,REV.407,411-16 (1932).A way- station article is Frederick J.de Sloovere,The Equity and Reason of a Statute,21 CoRNELL L.Q,591,598(1936),which advocates the Golden Rule,that statutes should be inter- preted reasonably. 46.See,e.g.,United States v.Whitridge,197 U.S.135,143 (1905)(Holmes,J.,for the Court)("[WJe cannot forget that...the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down."). 47.Frankfurter,supra note 45,at 538-39.Even arch-realist Max Radin accommo- dated the new consensus in a 1942 article,which argued that a statute is a "ground design,"an "instruction to administrators and courts to accomplish a definite result, usually the securing or maintaining of recognized social,political,or economic values." Radin,supra note 45,at 407. 1993] 1739 HeinOnline--61 Geo.Wash.L.Rev.1739 1992-1993
Speluncean Explorers THE GEORGE WASHINGTON LAW REVIEW judges are nothing more than another set of political actors, seemed inconsistent with traditional theories of democracy or the rule of law. The shortcomings of both formalism and realism gave rise to a demand for a theory of statutory interpretation that tied law to reason as well as to democracy and rules. Judges and academics grappled with this conundrum, and a tentative answer emerged in the period from 1939 to 1942: Statutory interpretation must be informed by the purposive role of state actors. 45 Although earlier scholars had acknowledged the idea that legislative purpose was important to statutory interpretation, and the Supreme Court had occasionally invoked purpose-based reasoning,46 this idea did not become central until 1939-1942, after the New Deal had been politically consolidated, just as the New Deal majority was forming on the Supreme Court, and right before the United States entered World War II. The new generation of scholars and judges accepted the realist argument that unelected officials do engage in lawmaking, but they suggested that such lawmaking had some direction from democratic sources. "Legislation has an aim," asserted Justice Felix Frankfurter. "[I]t seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government." 47 Hence, added Professor Harry Willmer Jones, "[t]he 'law' of a statute is not complete when the legislative stamp has been put upon it; subsequent judicial decisions add meaning 45. The primary articles, in order of their publication, are Harry W. Jones, The Plain Meaning Rule and Extrinsic Aids in the Interpretation of Federal Statutes, 25 WASH. U. L.Q. 2 (1939), FrederickJ. de Sloov~re, Extrinsic Aids in the Interpretation of Statutes, 88 U. PA. L. REV. 527 (1940) [hereinafter de Sloov~re, Extrinsic Aids], Harry W.Jones, Extrinsic Aids in the Federal Courts, 25 IOWA L. REV. 737 (1940) [hereinafterJones, Extrinsic Aids], Harry W. Jones, Statutory Doubts and Legislative Intention, 40 COLUM. L. REV. 957 (1940), Charles B. Nutting, The Ambiguity of Unambiguous Statutes, 24 MINN. L. REV. 509 (1940), and Max Radin, A Short Way with Statutes, 56 HARV. L. REV. 388 (1942). For later works in the same vein, see Frank, supra note 31, and Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527 (1947). My assertion about the dramatic break in the literature is based in part on the dramatic surge in articles with strikingly similar arguments in or around 1940 and in part on the different emphasis in these articles. Compare, for example, de Sloov~re's 1940 article emphasizing legislative purpose, see de Sloov~re, Extrinsic Aids, supra, at 532-33, with his earlier work emphasizing imaginative reconstruction, Frederick J. de Sloov6re, Preliminary Questions in Statutory Interpretation, 9 N.Y.U. L.Q. REV. 407, 411-16 (1932). A waystation article is FrederickJ. de Sloov6re, The Equity and Reason of a Statute, 21 CORNELL L.Q. 591, 598 (1936), which advocates the Golden Rule, that statutes should be interpreted reasonably. 46. See, e.g., United States v. Whitridge, 197 U.S. 135, 143 (1905) (Holmes, J., for the Court) ("[W]e cannot forget that... the general purpose is a more important aid to the meaning than any rule which grammar or formal logic may lay down."). 47. Frankfurter, supra note 45, at 538-39. Even arch-realist Max Radin accommo- dated the new consensus in a 1942 article, which argued that a statute is a "ground design," an "instruction to administrators and courts to accomplish a definite result, usually the securing or maintaining of recognized social, political, or economic values." Radin, supra note 45, at 407. 1993] 1739 HeinOnline -- 61 Geo. Wash. L. Rev. 1739 1992-1993
