Kevin M. Stack

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Colorado Law Review

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Originalism, Dynamic interpretation, Textualism




There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct democratic foundations of these two forms of enacted law, and provide reasons for interpreting them differently. I next argue that the rule-of-law virtue of stability developed in Professor Eskridge's theory pushes constitutional and statutory interpretation apart because, on Professor Eskridge's view, predictive judgments about how other institutions will respond to a decision are central to the Court's interpretive exercise, and those predictive judgments will differ depending on the interpretive domain at issue. Finally, I defend this interpretive particularism by suggesting reasons why interpretive approaches should vary depending on the theory of legal authority applicable to the type or class of law in question.

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