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Principles of Statutory Construction - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Principles of Statutory Construction

What are these established rules or principles of interpretation, and where might a judge turn for guidance? In 1789, when the Federal Judiciary was first organized, he would have first turned to the writings of the English jurists, especially Coke and Blackstone, and possibly also to the writings of the international law jurists of Europe, such as Jean Jacques Burlamaqui, Emerich Vattel, and Hugo Grotius. Over the centuries, the English jurists had developed coherent, well-defined principles of construction for interpreting acts of Parliament, and the international law jurists had likewise established rules for interpreting treaties among foreign nations. There was no body of legal literature to which American judges might turn for guidance for the interpretation of a constitution, however, because written constitutions were unprecedented. Hence the members of the new Federal judiciary, led by the Supreme Court, found it necessary to create their own rules of interpretation, based in part on principles adopted from the common law and the law of nations, and in part from the peculiar requirements of a popularly based written constitution that was declared to be the supreme law. In other words, it became readily apparent to them that certain principles useful for determining the meaning of a law or a treaty might also be applied for determining the meaning of a clause in the Constitution. In certain instances, however, new rules would have to be devised because a constitution is obviously different in many respects from a law or treaty and therefore raises unique interpretive problems.

A basic interpretive task common to all three is the task of determining intent. What was the intent of the lawmakers who made the law? Of the foreign ministers who drafted the treaty? Of the delegates who wrote the Constitution? In his Commentaries on the Laws of England, Blackstone noted that the first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties. “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made,” wrote Blackstone, “by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”

He went on to explain that words are generally to be understood according to their usual or popular usage. If they are ambiguous, then the next step is to try to establish their meaning from the context, or by comparing them with other words and sentences in the same instrument, or by comparing them with another law on the same subject. The law of England, for example, declares murder to be a felony “without benefit of clergy.” To learn what the “benefit of clergy” means, it is necessary to turn for guidance to other laws employing this term.

Failing here, the judge may find the intent of the law by observing the subject matter or the purpose of the law. Blackstone cites as an example an English law forbidding members of the clergy from purchasing “provisions” in Rome. This does not mean they are prohibited from buying food and grain, but from securing nominations to ecclesiastical office, which were called “provisions.” This is clearly what the statute intended because its purpose was to prevent the Pope in Rome from usurping the powers of the King, who is the head of the Church of England.

As for the effects and consequences, the rule, said Blackstone, is that where words seem to lead the court to absurd results, it is helpful to abandon their literal meaning and rely on common sense. A law, for example, stating that “whoever drew blood in the streets should be punished with the utmost severity” should “not extend to the surgeon who opened the vein of a person that fell down in the street with a fit.”

Finally, wrote Blackstone, judges should consider the reason and spirit of the law when the words are dubious and the alternative means of construction have failed to uncover the intent of the lawmakers. To illustrate the point, he cited a case from the Roman law put by Cicero, the great statesman and orator. There was a law for ancient mariners providing that anyone who abandoned ship in a storm forfeited all of his personal property on board. Those who stayed with the ship were entitled to keep both the ship and its cargo. The intent of the law, obviously, was to encourage seamen to remain with a stricken vessel by offering them an economic incentive and to reduce the loss of valuable ships. A terrible storm arose, and every sailor except one who was too sick to move left the ship in question. The ship miraculously survived the storm, and when it reached port the sick man claimed ownership of the ship and its contents. The Roman judges properly rejected his claim because a reward to him, though technically correct, would defeat the intent of the law.

This method of interpreting the law according to its reason arises from what we call equity, which, as we saw earlier, is an interpretive device used by judges to correct a law which, because of its generality and universality, may be deficient when applied. But equity jurisprudence, as Blackstone further explained, is potentially dangerous to rule of law and must be applied with utmost caution. This is so because equity depends essentially upon the particular circumstances of each individual case, and the established rules are not as definite as in the law. Carried to extremes, it would make the judges a law unto themselves. “The liberty of considering all cases in an equitable light,” he warned, “must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a legislator, and introduce most infinite confusion; as there would be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.”

In 1803, the first American edition of Blackstone was published in Philadelphia by St. George Tucker, a professor of law at William and Mary College in Virginia. Later, as American law developed under the new State and Federal constitutions, American lawyers began writing legal treatises and publishing their own reports of cases, so that American law, though English in origin, became increasingly distinguishable from its parent system.

The most prolific and influential of the early legal writers was Joseph Story, an Associate Justice of the Supreme Court from 1811 to 1845. Story, who also lectured at the Harvard Law School for many years and was widely acclaimed as America’s foremost legal scholar, published nine major legal treatises while serving on the Court. The most famous of these was his three-volume classic, Commentaries on the Constitution, which was first published in 1833 but went through many subsequent editions. Included in the work was a complete analysis, based on The Federalist essays, of the origin, meaning, and purpose of every clause of the Constitution. This in itself was enormously helpful to judges and lawyers, who had little to go on except The Federalist and only limited access to the original founding documents that might be of assistance in determining the intent of particular provisions of the Constitution. James Madison’s Notes of the Debates in the Federal Convention of 1787 were not published until 1840. Jonathan Elliot did not publish his four-volume collection of Debates in the Several State Conventions on the Adoption of the Federal Constitution until 1830. In fact, debates in many State ratifying conventions were either fragmentary or nonexistent. Story’s Commentaries, plus The Federalist and a few shorter and less comprehensive works, thus served as the principal guides for interpreting the Constitution in the founding era.

What was especially valuable to members of the bench and bar in Story’s Commentaries, however, was the incorporation into the text of material on constitutional interpretation. Devoting a large portion of his treatise to “Rules of Interpretation,” Justice Story endeavored to explain, step-by-step, the process to be followed for the proper interpretation of the Constitution. This is the first and only time a member of the Supreme Court has ever attempted to expound at length on the principles and mechanics of construing the American Constitution. It was an innovative and timely addition to the existing literature. When we stop to consider the influence of Story and his Commentaries on constitutional development, this was also a significant contribution to understanding the role of the judge in the American political system.

Borrowing heavily from Blackstone, but finding support as well from such noted authorities as Bacon and Vattel, Story affirmed Blackstone’s first rule of interpretation: to construe the instrument “according to the sense of the terms and the intentions of the parties.” Continuing, Story laid out the rule as follows:

Mr. Justice Blackstone has remarked that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes which led to its enactment, are often the best exponents of the words, and limit their application.

From this it followed, said Story, that in many instances there is no problem of interpretation unless “there is some ambiguity or doubt” about the meaning of a particular word or phrase. “Where the words are plain and clear, and the sense distinct and perfect arising from them, there is generally no necessity to have recourse to other means of interpretation.” In this situation, the instrument in question, whether it be a contract, a will, a statute, or the Constitution, is said to interpret itself, and the judge has only to acknowledge and declare the obvious intent of the parties.

Applying these principles to the interpretation of the Constitution, Story asserted that the first rule is to examine both the general structure and the component parts of the Constitution, keeping in mind its overall objectives and scope of power. “Where the words are plain, clear, and determinate, they require no interpretation.” This is true of most provisions of the Constitution. Article I, Section 3, for example, states that “The Senate of the United States shall be composed of two Senators from each State.” This seems clear enough. Each State is entitled to two Senators, no more, no less.

In some instances, however, “the words admit of two senses, each of which is conformable to common usage.” In this situation, said Story, “that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and the design, of the instrument.” A good example of this sort of difficulty would be Article II, Section 1, which provides that, “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.” The clause making eligible persons who were citizens of the United States in 1787 was necessary, of course, since nobody old enough to become President in 1787, or for a long time afterward, was a “natural born” citizen of the United States. Every adult born in this country before 1776 had been born a British subject. (The first President born under the American flag was Martin Van Buren, who did not come into office until the elections of 1836.)

But what is a “natural born” citizen? An obvious interpretation of a “natural born” person would be a child born in the United States to American parents. Likewise, a “naturalized” citizen, that is a person born in a foreign country to foreign parents who later acquired American citizenship through naturalization, would not be eligible to serve as President because that person would not be a “natural born” citizen. What about a child born in a foreign country to American parents? This issue actually arose in 1967, when George Romney, Governor of Michigan, sought the presidency. Romney’s American parents were living in Mexico when he was born. Was he eligible for the office of President?

As Judge Story suggests, the proper way in which to interpret the eligibility clause under the circumstances would be to look at its original purpose, and to adopt that interpretation which “best harmonizes with the nature and objects, the scope and design, of the instrument.” Although the delegates to the Philadelphia Convention and the authors of The Federalist did not discuss at length the eligibility clause, we know from reason and experience, as Story explained, that “the great fundamental policy of all governments” is “to exclude foreign influence from their executive councils.” This, he observed, “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe.” It was thought dangerous, in other words, to make the presidency available to a person who might have just recently come to the United States and might still feel an allegiance to a king, a czar, or a foreign government. In light of these considerations, a ruling that George Romney, born of American parents, was a “natural born” citizen would seem to be consistent with the basic purpose of the eligibility clause.

A more troublesome interpretive problem arises when, even though the words are clear of doubt, the constitutional provision in which they appear is not entirely free of ambiguity. Consider, for example, Article II, Section 2, which provides that the President shall have the power to appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the United States established by law. We know from Article III, Section 1 of the Constitution that judges of the Supreme Court shall hold their office “during good behavior,” and cannot be removed from office by the President. But what about an ambassador or a department head? The Constitution is silent on the question of whether the President may remove one of these officials from office. Yet it would seem to follow, as a matter of common sense, that if the President has the power to appoint an ambassador that he also has the power to remove him, and that the removal power is therefore incidental to the appointment power. This is precisely how the Supreme Court has resolved the question. The removal power may be said to be, in effect, an implied power of the President, and one that is essential if the President is to be able to carry out the executive functions. It hardly makes sense to deny the President this power and at the same time expect him to administer the laws and conduct the foreign relations of the country. Otherwise the President would be at the mercy of his own cabinet and foreign ambassadors.

Granted, then, that the President may remove these officers, might the Senate nevertheless limit the President’s removal power either by requiring its own consent or by specifying the causes for the removal? The Senate has in the past taken the position that, since the Senate must approve the appointment, it must also consent to the removal. It was precisely upon the basis of this claim that President Andrew Johnson was impeached and almost removed from office himself. Under the Tenure of Office Act of 1867, Congress prohibited the President from removing any department head without its consent. Judging the Act an unconstitutional interference with his executive powers, President Johnson ignored the statute and attempted to remove the Secretary of War on his own authority. The House of Representatives impeached Johnson, but the Senate failed to convict. Congress later repealed the statute and the issue was dropped.

In the famous case of Meyers v. United States (1926), the Supreme Court later ruled that the Senate may not restrict the power of the President to remove officers of the United States. In one of the longest and most elaborate opinions ever written for the Court, Chief Justice William Howard Taft, who had previously served as President, relied upon established practice and, more fundamentally, upon the separation of powers principle, in ruling that President Wilson had the right to remove a certain postmaster from office, notwithstanding an 1876 statute requiring senatorial approval. The President’s unrestricted removal power, reasoned Taft, stemmed from “the executive power” and the “faithful execution of the laws” clause. The President must rely upon subordinates to execute the laws, said Taft, and he cannot perform this function, or be held accountable, if he cannot select administrative officers of his own choosing.

Chief Justice Taft’s approach was essentially consistent with the rules of interpretation proposed by Judge Story almost a century earlier. When dealing with ambiguities of the Constitution, said Story, it is essential that all of the available sources of understanding be explored, including “the antecedent situation of the country and its institutions, the existence and operations of the State governments … contemporary history and contemporary interpretation. …” In the final analysis, he concluded, “the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties and rights, with all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”

These general principles of interpretation articulated by Story and derived in part from ancient law, Roman law, and English law, have been acknowledged as binding on courts since the earliest days of the American republic. Throughout American history, judges have subscribed to the ancient maxim of Sir Francis Bacon, who admonished the judges of England “to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law.” This fundamental principle, as we noted earlier, is nowhere stated in the Constitution. Like federalism and separation of powers, it is nevertheless an implicit rule of the Constitution. It defines the judicial function, governs the behavior of judges, and is the essence of what is known as the doctrine of judicial self-restraint.

Because this rule is self-imposed and is not explicitly mandated by the Constitution, observance of it has not always been consistent. Judges, after all, are human beings, subject to the same temptations of power as any legislator or executive. Those who yield to such temptations are said to be judicial activists—judges who read their own bias into a law or the Constitution, in disregard of the lawmakers’ or Framers’ intent, in order to reach a decision they personally favor, or believe is convenient. The argument has even been made that judges have a special duty to promote “moral values” or that all citizens are entitled to certain undefined, philosophically based “natural rights,” and that judges are therefore at liberty to render any interpretation they please in order to secure those “values” or “rights.” Such practices may, however, produce judicial decisions that are in conflict with the Constitution. A judge, wrote Story in his Commentaries, should not “enlarge the construction of a given power beyond the fair scope of its terms merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed that the mischief is less than what would arise from a further extension of the power, or that it is the least of two evils.” Moreover, said Story, “it should not be lost sight of that the government of the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator and deserting those of an expounder of the law.”

Judges, then, have a special duty to maintain the integrity of the American constitutional process, to see that the rules are uniformly followed, and to hold all public officials, including themselves, to the same standards. This has meant that American judges have been especially concerned about procedure. By following the same procedure in every case, whether it be in the conduct of a trial or in the interpretation of a statute or provision of the Constitution, a judge may rightfully claim that his personal preferences did not intrude upon the dispute. Certainty in the law—an essential attribute of rule of law—is undermined when judges repeatedly change the rules, overturn established precedents, and arbitrarily reverse themselves. This has been recognized since the dawn of Western civilization. Thus the ancient Code of Hammurabi, written by the Babylonians in 2100 , declared that, “If a judge has tried a suit, given a decision, caused a sealed tablet to be executed, and thereafter varies his judgment … then they remove him from his place on the bench of judges in the assembly.”

Such rigorous adherence to procedure has also meant that the actual outcome or result of a case might not be what the judge privately favored. But this is a small price to pay for rule of law. Strict adherence to procedure may even at times produce an unjust result, as occasionally occurs when an innocent person is judged guilty or a guilty person is judged innocent by an errant jury. But in the long run, it is generally believed, justice will usually prevail if the proper procedures are uniformly observed. Deliberate attempts by the judges to reach out for “justice” in each case, irrespective of established norms and procedures, have traditionally been viewed in American law as an abuse of office and the equity power. Such arbitrariness puts the law in a state of turmoil and uncertainty, invites political interference in the judicial process, and endangers the independence of the judiciary by encouraging legislative retaliation.