Externalist Statutory Interpretation
abstract. The dominant paradigm of statutory-interpretation scholarship is an “internalist” one. It treats statutory interpretation as a self-contained set of tools primarily deployed by lawyers and judges within the closed universe of courts. But as judges increasingly justify textualism by invoking a populist fidelity to “the people,” the internalist paradigm has proven too narrow to support a robust democratic theory of statutory interpretation. Urgent, foundational questions such as “How should laypeople engage with statutes in the first place?” and “What is the relationship between statutory interpretation and power?” are entirely illegible within an internalist, juricentric paradigm. The concept of a statute’s “ordinary meaning” has in turn developed with little attention paid to laypeople’s actual participation in political processes.
In response, this Article—the second in a series—begins a new conversation in the field of legislation by developing a broader, critically “externalist” perspective. The Article lays the foundations for a social and political theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation. An externalist perspective reveals the lived experience of statutory interpretation beyond traditional governmental actors. It sees statutory interpretation and society as mutually constitutive. It pays attention to on-the-ground manifestations of abstract values like “the rule of law.” And it situates statutory interpretation as a component of political culture, political economy, grassroots participation, and racial politics. This perspective reveals how statutory interpretation might frame how people imagine the possibilities of societal change. And it enables us to ask, counterintuitively, whether statutory interpretation makes social change more difficult.
To begin the work of articulating this externalist paradigm, the Article chiefly recovers a new history of expository legislation—statutes that purported to interpret previous legislative enactments—and uses that history to articulate three new frameworks.
The first framework—“participatory statutory interpretation”—shows how statutory interpretation has been a profoundly democratic practice done by “ordinary” people. Many laypeople—including unenfranchised, poor, and other marginalized people—once had a direct, personal, and intimate connection to statutory interpretation that they channeled into petitions for expository legislation. Through expository legislation, they accessed an alternative to judicial remedies and checked administrative officials’ interpretations of statutes. However, this mechanism of participation was fragile and imperfect, as corporations also could exploit it to secure their own interests.
The second framework—“sociopolitical statutory interpretation”—shows how statutory interpretation has been inseparable from mass politics. Challenging the idea that statutory interpretation is relatively apolitical, this framework highlights how statutory interpretation can be a part of grassroots, nationwide political struggles—not just individualized legal conflicts in courts. At the same time, it raises questions about the limitations of statutory interpretation as a tool of political struggle.
These two frameworks lead to a third: “legislative intent as ordinary meaning.” Whereas scholars and judges have presumed that the “ordinary meaning” of statutes must ultimately be about textual meaning, this framework demonstrates the historical basis of an “ordinary meaning” not centered around statutory text. As the Article shows, laypeople cared deeply about legislative “intentions,” and many saw text as merely evidence of law rather than law itself. Meanwhile, as expository legislation shifted toward directly modifying statutory text, the notion that “text is law” became imperiled in new ways.
author. Legal History Fellow, Yale Law School; Ph.D. Candidate, Yale University, Department of History; J.D., Yale Law School. For their generous encouragement, support, suggestions, patience, and time, I thank David Barron, Jesse Cross, Justin Driver, Bill Eskridge, Joanne Freeman, Heather Gerken, Abbe Gluck, Tara Grove, Victoria Nourse, Nick Parrillo, Reva Siegel, and John Witt. For helpful comments, conversations, and/or suggestions, I thank Anya Bernstein, Richard Briffault, Greg Briker, Zach Brown, Jane Coppock, Katherine Mims Crocker, Teddy Delwiche, Nathaniel Donahue, Jacob Eisler, Isaac Green, Youssef Helmi, Alena Higgins, Michelle Hudson, Andy Juchno, James Kessenides, Eva Landsberg, Maggie Lemos, Jane Manners, Daniel Markovits, Victoria Morehead, John Nann, Farah Peterson, Mark Peterson, Steve Ross, Mark Seidenfeld, Jed Shugerman, Brian Slocum, Pev Squire, Tyler Trudeau, and Deb Widiss. A version of this paper was previously presented at the AALS Legislation and Law of the Political Process’s Emerging Scholars session, and I’m grateful for the Oscar M. Ruebhausen Fund for financially supporting that presentation. I also thank audience members of the Georgetown Legislation Roundtable. Thanks especially to the editors of the Yale Law Journal, and particularly Belle Grant, Lily Moore-Eissenberg, Adam Schwab, and Zachary Spitz. Any and all errors are, regrettably, my own.
Introduction
The dominant paradigm of statutory-interpretation scholarship is an “internalist” one. Under this paradigm, statutory interpretation remains separate and insulated from society; it is valued only insofar as it enables attorneys and governmental actors to resolve individualized legal disputes, usually within the closed universe of courts; and the historical development of its methodology depends primarily upon the refinement of intellectual justifications for specific interpretive tools.1 With few exceptions,2 the role of politics is invisible beyond congressional partisanship and lobbying3 or the appointment of politically biased judges.4 This internalist conception of statutory interpretation has persisted even as scholars and judges have increasingly justified textualism based on a populist, “democratic” fidelity to the perspective of “ordinary” people who are “outsiders” to these processes.5 Statutory interpretation remains seen as a technical game that law students learn, that lawyers play, and that judges fight about while invoking fictional “ordinary readers”—obscuring statutory interpretation’s role as a form of democratic participation that laypeople engage in and think about.
Yet below the surface of this elite and internalist view of statutory interpretation, a hidden world of lay participation continues to materialize amidst today’s most pressing social and political crises. One can glimpse this world, for example, through online petitions making interpretive claims about statutes affecting the COVID-19 pandemic,6 police-inflicted violence against Black people,7 gun control,8 the survival of small farms,9 the scope of religious-freedom protections,10 consumer privacy,11 and more. One can see this world in Reddit threads that allow communities to debate and interpret the language of proposed legislation. Take, for instance, a post on the subreddit r/gunpolitics titled “Understanding H.R. 7910 and H.R. 8, How they Function, and why you should oppose them,”12 which interpreted proposed bills and led readers to make comments such as, “This line makes the FFL03 [Federal Firearms License] useless. . . . Whenever you see this explicit list ‘licensed importer, licensed manufacturer, or licensed dealer’ it means everyone but FFL03 collectors because they could just use ‘license holders’ to refer to all FFL holders.”13 So too can one see this world in the guts of the regulatory process—for example, in emails from business owners, interest groups, and laypeople to California’s Privacy Regulations Coordinator in response to proposed regulations under the California Consumer Privacy Act.14 Consider one email, written by a barbershop franchisee who asked for more guidance on the applicability of the term “business” to franchises,15 or another email, written in Comic Sans font, criticizing how the term “business” might not apply to “government agency businesses.”16 These forms of participation remain invisible in the statutory-interpretation literature, despite the field’s increasing focus on elaborating theories of “ordinary meaning.”
But as this Article—the second in a series17—excavates, lay participation in statutory interpretation has been an important part of American history since the nation’s beginning. This history reveals the past and potential future of statutory interpretation as a site of democratic deliberation and collective power building while also raising questions about the limits and exploitability of statutory interpretation as a vehicle for societal change. And, as this Article argues, these possibilities and limits are perceptible only when one takes a critically externalist view of statutory interpretation—a view that this Article begins to develop.
A critically externalist paradigm of statutory interpretation, unlike the dominant internalist paradigm, reveals the lived experience of people engaged in statutory interpretation beyond traditional actors in government institutions. If an internalist perspective conceptualizes statutory interpretation as linked to but ultimately autonomous from developments in society, then a critically externalist perspective sees statutory interpretation and society as mutually constitutive. Most importantly, if an internalist perspective assumes that statutory interpretation is simply about advancing abstract values—whether “rule of law” or “fairness” values—a critically externalist lens attends to the material manifestations of those values. This externalist perspective builds on Margaret H. Lemos’s recent scholarship on the politics of statutory interpretation18 by expanding what kinds of politics are relevant—not just politics in terms of partisanship but also in terms of political culture, political economy, grassroots participation, racial politics, and more. Moreover, it broadens the frame of conversation about the politics of statutory interpretation beyond debates about particular theories or methods of statutory interpretation such as textualism19 by instead raising questions about the political valence of statutory interpretation in general.20
The upshot is that this Article lays the descriptive foundations for a theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation. It suggests that statutory interpretation could play an important role in framing how laypeople imagine the possibilities of societal change. Yet even as an externalist perspective allows us to conceptualize statutory interpretation as a vehicle of societal change, it also enables us to consider the possibility that social struggle over statutory interpretation actually conserves the status quo by directing energy toward interpretive activity that presumes the continuation of the underlying statutes. Indeed, an externalist perspective allows us to ask whether statutory interpretation impedes social change by facilitating what Reva B. Siegel has called “preservation through transformation.”21
The Article also contributes to two other bodies of scholarship. First, whereas political scientists and public-choice theorists have assessed the role of lobbyists and interest groups in the legislative process,22 this Article’s externalist perspective posits that certain aspects of statutory interpretation can themselves be seen as part of a story about competing societal interests. Second, whereas legal scholars have recently argued that administrative agencies today exemplify values of agonistic and pluralistic democracy,23 this Article demonstrates how statutory interpretation can be—and historically has been—an important vehicle for actualizing those values.
To begin the work of developing a critically externalist perspective of statutory interpretation, the Article chiefly unearths the history of a little-known type of statute called expository legislation.24 An expository statute is a legislative enactment passed for the specific purpose of interpreting or construing an existing enactment.25 Expository legislation is a surprising phenomenon, as I have suggested in an earlier article, because it shows that Congress and state legislatures historically have believed that they were capable of performing statutory interpretation themselves—even if their interpretative acts sometimes looked, at least to outsiders, like making new law.26 In fact, until the late nineteenth and early twentieth centuries, expository enactments typically purported to “explain” or “declare” the “true meaning” or “true intention” of prior statutes—usually without modifying the texts of the statutes being construed.27 Legislators, laypeople, and lawyers understood expository legislation to be a formally distinct type of enactment that—unlike amendments—by definition did not change the law. Rather, expository laws allowed legislatures to express what they believed were the original intentions behind statutes in ways that regular “amendments” by definition could not.28
From a top-down perspective, as I have suggested previously, expository legislation raised questions about strict separation of powers in statutory interpretation.29 Expository legislation has been a longstanding feature of American history since before the Founding.30 It allowed legislators to supervise administrative statutory interpretation and override judicial interpretations.31 It allowed administrative officers to clear up inter- and intradepartmental statutory-interpretation disputes.32 Especially when it didn’t have retroactive effects, expository legislation was widely accepted by American legislatures, executives, administrative officers, and even judges, who sometimes asked for these statutes.33
The present Article builds on my earlier article by explaining more fully the historical transformations in the form and volume of expository legislation, recovering the bottom-up history of expository legislation, and bringing the history of expository legislation into the twenty-first century. Together, the two pieces illustrate how legislatures’ self-conceptions of their interpretive abilities, combined with legislatures’ unique institutional features and benefits relative to the limitations of other branches of government, not only sparked abstract separation-of-powers conflicts but also facilitated a democratic world of statutory interpretation that real people took advantage of.
Grounded in that history, this Article develops three foundational, largely descriptive frameworks for understanding and applying the critically externalist paradigm.
Part I offers a framework that I call “participatory statutory interpretation”—the idea that laypeople can build power through direct engagement with statutory interpretation both within and beyond courts. Drawing on insights on petitioning by scholars such as Maggie Blackhawk,34 Part I excavates the forgotten phenomenon of laypeople petitioning their legislatures for particular interpretations of statutes via expository legislation. In doing so, this Article is one of the first to illuminate the historical relationship between laypeople—especially historically marginalized people such as Black and Indigenous people and women—and elite lawyers, lawmakers, and judges in the transformation of statutory interpretation. Many laypeople found litigation to be too expensive, prone to delay, and unavailable because of procedural obstacles; they wrote to their lawmakers for help instead. For laypeople, legislative statutory interpretation became an accessible alternative to judicial remedies—particularly in response to executive-branch administrators’ misreadings of statutes. This form of participation was fragile and imperfect. Corporations learned how to exploit it, which ironically contributed to the decline of participatory statutory interpretation. Nonetheless, this history suggests that statutory interpretation can be an important way for laypeople to build power collectively, beyond and in the shadows of the judiciary.
Whereas Part I argues that statutory interpretation can be participatory—and should be seen as participatory—Part II introduces a second framework that I call “sociopolitical statutory interpretation”: the idea that statutory interpretation is and has been a site of profound, mass sociopolitical conflict, not only individualized legal conflict. To demonstrate this, Part II documents how national fights over slavery, territorial conquest, and Reconstruction drew upon expository legislation and legislative statutory interpretation. It then contextualizes this history, highlighting how phenomena “external”35 to law made statutory interpretation not just a neutral, technocratic tool of elite jurists but also a site of political, ideological, class, gender, and racial struggle. For example, Part II describes how social movements on issues ranging from labor to temperance to women’s rights used the form of expository legislation to interpret law “with their feet.” Statutory interpretation became about winning on the streets, not just in courtrooms. Statutory interpretation became politics. At the same time, Part II also suggests there may be limits to the transformative potential of statutory interpretation as a tool and site of politics.
Part III shows how these politics were surprisingly intertwined with a theory of statutory interpretation that modern legislation scholars have debated: the theory that identifying legislative intentions and purposes is an important component—if not the primary goal—of statutory interpretation. Thus, Part III draws on the histories of participatory and sociopolitical statutory interpretation to develop a third and final framework: “legislative intent as ordinary meaning”—the idea that determinations of “ordinary meaning” should sometimes include determinations of “legislative intent” rather than remaining strictly text-centric inquiries. This is a departure from present-day judges’ and scholars’ presumption that the search for “ordinary meaning” must be focused on how laypeople would understand and use the words of statutes.36 Today, “ordinary meaning” has been narrowly construed to mean the ordinary meaning of specific words, despite recent empirical scholarship showing that people care significantly about statutes’ purposes.37 By contrast, this Article investigates how laypeople actually understood statutes by examining how they participated in political processes.38
Part III grounds the legislative-intent-as-ordinary-meaning framework in two historical developments. First, as the history of participatory and sociopolitical statutory interpretation shows, many everyday Americans believed that statutory text was merely evidence of law, not law itself. Many expository statutes left original statutes unchanged and so created a legal system in which the meanings of statutes inherently couldn’t be gleaned by only looking at the words of those original statutes.39 “Ordinary” people—in their petitions to legislatures for expository legislation—argued that statutes had been construed contrary to legislatures’ intentions, not that there had been a failure to arrive at objectively correct or “ordinary” definitions of specific words. Ordinary people cared about legislative intent, and so the “ordinary meaning” of statutes involved more than statutory text.
Part III also tracks a macrolevel historical transformation in expository legislation to show how the stability of statutory text, and the textuality of the concepts of “amending” and “expounding,” were historically contingent. Whereas expository statutes before the 1870s rarely changed the texts of old statutes being interpreted, Part III draws on original datasets of thousands of expository enactments to document this transformation, showing how these enactments increasingly modified statutory text. As traditional expository legislation declined, legislatures in the early twentieth century reincarnated expository legislation but increasingly used it to modify the texts of old statutes, making these expository laws nearly indistinguishable from what we now consider to be “amendments.”40 As expository legislation increasingly became based on changing statutory text while announcing that these changes were merely “declaratory” or “clarifying,” it imperiled a central assumption of textualism: that legislature-enacted changes to text necessarily create meaningful changes in law. Contrary to that tenet of textualism, expository legislation showed that it was possible for a legislature to enact changes to statutory text without creating meaningful changes in law.
These three frameworks—and the critically externalist paradigm that grounds them—offer a new historical backbone for a more realistic and robust social and political theory of statutory interpretation. It allows us to ask: Who is statutory interpretation for? Who can legitimately do statutory interpretation? What are the democratic possibilities—and limits—of lay participation in this seemingly niche, technical endeavor? Is statutory interpretation merely a distracting off-ramp for political energies that could be expended elsewhere? Is societal change via statutory interpretation illusory? Most importantly, what is the relationship between statutory interpretation and power? As this Article demonstrates, questions such as these were ever-present for laypeople. And the Article’s recovery of those lost questions and histories invites us to think more broadly, and more imaginatively, about what statutory interpretation is and can be to the American public.