FedSoc LiveBlog: Annual Rosenkranz Debate and Luncheon: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress

November 14th, 2009

Annual Rosenkranz Debate and Luncheon: Statutory Interpretation
RESOLVED: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress
Saturday, Nov. 14
12:30 p.m. – 2:30 p.m.
Grand Ballroom

  • Hon. Guido Calabresi, U.S. Court of Appeals, Second Circuit
  • Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Moderator: Prof. John F. Manning, Bruce Bromley Professor of Law, Harvard Law School




25 years ago, statutory interpretation was not very important, and received little attention. This topic source of energetic debate. Intentionalists an Purpovists and Textualists

Defend the proposition when interpreting statutes judges should be honest agents of the enacting legislature. Fiathful application of statutes part of our heritage from UK: “judicial power in Article III”

Take care that the laws be “Faithfully” executed. Judges cannot be allowed to depart from faithful execution when the Executive cannot.

The real question: Faithful to the enacting legislature, or to the sitting legislature? Later enacted statues and treat earlier statues as part of common, if not statutory law. (Common law in the age of statues- Calabresi)

1. Our Constitution makes certain procedures essential to law. Majority vote, both houses must enact same text during same session, President must give assent unless override veto. Terms limited to 2, 4,6 years. Judges can’t conceive of legislatures as in perpetual tenure. Only what officials do during their term counts as law. opinion poll is not law, even if poll is 100% sure represents legislature law. West VA v. Casey, litigant argues that if Congress thought of this in 1871, they would have thought of shifting of expert fees. Justices though this exercise illegitimate. Judges are not authorized to engage in this exercise.

Stevens, J. dissent: ” The fact that Congress has consistently provided for the inclusion of expert witness fees in fee-shifting statutes when it considered the matter is a weak reed on which to rest the conclusion that the omission of such a provision represents a deliberate decision to forbid such awards. Only time will tell whether the Court, with its literal reading [n.19] of 1988, has correctly interpreted the will of Congress with respect to the issue it has resolved today.”

THe only will of Congress taht counts is will htat satisifes bicamerlaism and presentment requirements

2. Limiting interpretation to enacting congres. Clauses enacted as package. Arguments that today’s congress would do X, considers that Legislatures would act in that exact way. But if proposal has support, someone always adds amendment. E.g., Stupak Amendment.

Civil Rights of 1991. Justices were sure legislature would overturn the law. Act also changed some decisions that favored plaintiffs, set caps on damage awards. Pro-worker provisions could not have been passed by pro-employer. Any prediction by Judge on one issue would not consider resolution of other issues.

3. Judicial attempts to predict what congress will do is difficult.

Illinois Brick Company v. Illinois, Brennan predicted in dissent Congress would change law, so the Court should allow the law to change without having the Bill go through congress.

“When a Judge says I’m confident today’s congress will propose X, it really means, I favor X”

Guide, and More, after the Jump

Imaginative Reconstruction.

Asking what enacting congress would have done had they addressed it directly. This ignores package nature of legislation. How to predict how people who died 50 years ago would handle topic.

Logan v. United States. Congress had approached that topic in another statute, unbeknownst to the Court. Problem of legitimacy of the methods, and really bad figuring out how Congress would consider this issue.

Easterbrook: “Im in favor of Judges not thinking. The more thinking they do about statutes, the more things can go wrong.”


Judges should be honest agents in interpreting acts of legislature. Distinction between interpretation and construction.

Construction is different. Whether there ought to be construction is difficult problem. Historically Judges have had power to construe.

Construe statutes to avoid Constitutional questions- we have done this forever. This is not interpreation.It is dishonest to call it interpreation, but it has been called interpreation.

Statutes in derogation of the common law read literally- not interpreation, reading statutes so they would not change the laws.

Calabresi, “Judges by their nature are conservatives.”

Bork- if you read antitrust laws according to what enacting legislatures wanted, they would want to protect both competition and competitors. But, to protect competitors would cause courts to do something courts ought not to do. Therefore, I will consture these statutes to allow only protecting competition.

GC called him “Brother Easterbook.” LOL

Courts had power to update common law of England. The whole of the common law in the United States is statutory, with power delegated to courts to construe and update the common law. Courts can not do this to statutes to which they were not delegated this power.

Construction may be allowed, but is not to be excluded iwthout thought.

Interpretation is always backwards looking,  honest agents. What does that mean? Find what legislators intended is impossible. What does it mean to be an honest agent?

Start with language. Language is meaningless outside of context. “Dick Posner is a crit of the Right.”

Langauge is very important. It limits a great deal. Text means something in context.

“You should have passed, dummy” means something different in bridge table than at halftime at the Superbowl.

Substance today means opposite of what it meant some time ago. Substance originally meant spirit, what is important. Then it became substantive, material. Opposite today.

Legislative history can be fraudulent, but that does not mean it is useless. To find out what legislature actually intended, it is useful.

Start with word, look to context, try to decide what words designed to mean.

I trust Judges to be Conservatives, more so than legislators.

Alternative is tying yourself to something which has no particular meaning because you don’t trust anybody.

Gold Standard is against monetary policy. But it has the advantage that it is mindless. If you don’t trust human beings at all, then you want to tie yourself to a mindless standard like the gold standard. As bad as it is, it is less than if people do their best to be honest. Tying yourself to fixed words that have nothing to do with what enacting legislatures meant, is tying oneself to a gold statute. Has little to do with legislature intent. But if you don’t trust anyone, you’re in trouble. You may tie yourself to Judges with the gold standard who own the gold mines. You know, this word means this. And if I want to be dishonest, I can say X means Y, as to  see what Lincoln would do today.

More, after the jump.

Easterbrook Rebuttal

Carrying out statute would be absurd, therefore we will do something else that is even more absurd.

Holy Trinity– Statute obviously applies as written to priests, but surely it would be absurd to apply it. Absurdity lays in Judges as opposed to actual text of the statute.

Absurdity doctrine is limited to linguistic garbles rather than substantive absurdity.

Judges should be faithful agents. What would a faithful agent in private life do?

You can’t fire agent if agent goes wrong? If you were principal, you would want less flexible system of interpretation.

Difference between assumption of Calabresi and Easterbrook. GC: If you had to interpret an old statute, if the community that enacted that stautte had been lost, Judge goes on to something else.

Easterbrook: In case of making something up, just put the statute now, it does not bear on the problem, go to the next law. UNless Congress has enacted a statute, private ordering prevails


Easterbrooks approach totally ahistorical. Courts did not do this in 18th century. Courts always look at mischief statute was aimed at resolving.

Underlying fear, confusion, as if we were talking about Constitutional interpretation. Talking about statutory interpretation. If courts get it wrong, mistakes can be corrected. If they can be corrected easily, if no political transaction costs, wouldn’t matter what any court said because the legislature could act easily. In COasian political world. But in our world, starting point in non-constitutional cases is different.

Framers did not like statutes to be enacted, so they put obstacles to change it.
As honest agents, try to find the best starting point, from which if we do it badly enough despite inertial effects.

But then the question is, do you think the best starting point is one which simply goes along with language which is misinterpreted to mean what it doesn’t mean? Or to try, knowing limits, starting with limits, in context, what was wanted, skeptical when conditions change. If it is possible when conditions change to say there is no law. Times when conditions change but you cannot do that.



Equity of the Statute doctrine. I read those expressions saying what I say in statutes domain. If statute does not have intelligible outcome. Just declare that the statute has been exhausted. And fallback position is different statute or presumption of private order. Equity of the statute is not transfer of authority to judges.

Propriety of federal common law. Swift v. Tyson decided there was a federal general common law and it could be used to fill the gaps when state statues were lacking. In Erie, unconstitutional to think there could be federal general common law, citing Warren, federal common law did not meet bicameralism and presentment. Easterbrook skeptical of Brandeis. Such a power can be conferred on the Court. Anti-trust laws conferred this power on the Courts, agrees with Justice Taft in Edison Pipe. All law applied to maritime, interstate land dispute are federal common law.

ERISA pre-empts and tells judges to make up federal common law. If statute transfers law making proposition to the Judges, then Judges have to be honest agents to enact that plan.


Guido: “If you are illegitimate, you are not a natural born citizen.” Frankfurter, J. “Agreed, it is as good as most of what goes for history in this court.”

Common law never enacted, cannot be law.

Blackstone was right- there is some power of limited interpretation in a statue.

Guido does not buy Bork’s construction. There are statutes that give Courts the common law power. When given the common law power under ERISA and antitrust, then we do a job which is different. We try to do not an unlimited job but a common law job of articulating the statue. When instead we act as interprets of a statute we are honest agents in the ordinary meaning of that in a situation which is much more difficult than when secretary tries to understand what I had in mind.

Manning proposes statute giving OSHA power to change safe Benzene levels in statute in 2009. In 2019 Benzene proven not to be dangerous. Would OSHA have the power to raise the level.

Calabresi- No. Too dangerous to let loose. OSHA could not change. If I could find some indications that the mischief was something else, thinking of term of agency that had authority to deal with this law, then I might do something. But without more I start with the words and it is not clear enough for me to say that it could be done. This makes me unhappy because I think this is not a good result but it is not an absurd result. I tis not plausible to believe the legislature put the inertia in one way. If they don’t look liek it they cna do something else.

Easterbrook agrees with Calabresi, but does not regret it, remotely. Not looking for way around it. Statute had structure. Not delegating statute. Designed to tie the hands of the agency. Legislatures often tie the hands when they don’t trust the agency.


It may be wise to give Courts the power, but giving administrative agencies the power to do things reviewed by courts may not be better statute.


Giving Courts discretion leads to better outcomes. Chicago- judges tend to produce efficient decisions as opposed to legislators who produce rent-seeking decisions. Common law beats statutes on efficiency grounds.

Very difficult to figure out when you have gone wrong. Reason why we have so many coal-fired plants, and so few nuclear plants, because D.C. Circuit resolutely blocked development of nuclear power in this countries by finding ambiguity in the act and internally remanding cases to Nuclear Commission.


“I want to thank God I’m not on the D.C. Circuit.”

When power to construe in a common law way is given to Courts is to talk as if it is giving the Courts discretion.Discretion is different word which means something very different. Dick Posner thinks Courts do not have this power. Guido does not think this. I am a common law teacher. I criticize courts that go beyond common law method.

Discretion aint the common law method. Treat like cases alike at appropriate general of generalities and taking into account different things that happened. Possible to delegate discretion. Much more dangerous.

Manning Hypothetical-


“Judge Easterbrook adopted the gold standard, and he owns the gold mind.”

When he thinks it is appropriate, look to the context. Is it more honest to pull a rabbi out o fa hat, or to say this is what we have to do all the time, and have to be criticized for doing it well.