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Applying the "Rules" of Statutory Construction.
Courts and commentataors sometimes also characterize
different types of statutory construction analysis by
using terms such as "liberal" or "conservative,"
or by ascribing to the court a "textualist,"
"substantive," or "intentionalist"
approaches. Generally, textual approaches relate to
interpretations affecting the entire statutory
enactment as a whole, whereas substantive approaches
relate to the substantive meaning of specific statutory
language itself. Thus, advocates of the "plain
meaning" rule of statutory construction adhere
to a textualist approach by seeking to construe the
statute entirely from the meaning of its own words.
This is sometimes also referred to as a "conservative"
approach.
By contrast, an intentionalist (or "liberal")
approach to statutory construction first determines
the underlying purpose of the legislation itself, and
then seeks to contrue the meaning of the particular
words used in the statute in such a way as to give effect
to that underlying purpose, regardless of what the actual
or "plain" meaning of those words might state.
Each of these different approaches to
statutory construction are regularly utilized by courts
today. Occasionally, different judges writing different
opinions in the same case will apply one or more of
these canons in support of their own particular interpretation
of the statute in question, despite the fact that it
often may produce an entirely different outcome. This
is very clearly illustrated in the various opinions
delivered by the Justices in T.V.A.
v. Hill, the first Supreme Court case to
construe the U.S. Endangered Species Act of 1973. We
will study this case in detail in Lesson 3 of the Course.
However, for purposes of this Lesson it is sufficient
to point out that a majority of the Court, in upholding
the statute, applied the statute's "plain meaning,"
despite the fact that the dissenters had wanted to construe
the Act in light of its legislative history, something
which the "plain meaning" approach simply
did not permt.
To this point in our discussion we have proceeded under
the general assumption that there are certain uniformly-recognized
basic "rules" for statutory construction and
that these rules are generally agreed upon and universally
applied by both courts and legislative bodies. In part
this is certainly true, as often the same general "rules"
of construction will be applied by both state and
federal courts, regardless of the particular jurisdiction
involved. However, you will probably not be surprised
to learn that instead of just one universal set of "rules"
of construction, there are in fact many different
variations of these rules. Often, courts or legislative
bodies do not always agree upon which specific "rules"
should be used, and if so, under what circumstances.
As a result, few "rules" of statutory construction
are consistently applicable in each and every situation.
Moreover, even though most of the so-called "rules"
or canons of statutory construction have in fact been
judicially created, for the most part they are generally
not subject to the traditional common law doctrine of
stare decisis. Instead, courts remain pretty
much free to apply them or to disregard them, whichever
approach best serves their purposes, regardless of how
or whether the same rule was applied in previous cases.
In practical effect, most of the "rules"
of statutory construction tend to be regarded more as
guidelines than binding rules. For example, even under
a textualist approach where the "plain meaning"
of every statute is to be given primary consideration
without reference to the legislative history of the
statute, when a particular court wishes to examine legislative
history it will usually do so, regardless of how clearly
worded the statute is.
What may be even more disturbing than the absence of
any generally agreed-upon uniform "rules"
of statutory construction, however, are the results
from recent investigations suggesting that many of our
previous assumptions about precisely what specific factors
and procedures various courts and legislators do actually
utilize in construing statutes may have been inaccurate.
You can read more about these studies in an article
by Professors Nourse
and Schacter.
For further background and insight into
the origins and application of many of these "rules"
of statutory construction, read the "Comments"
to the Uniform
Statute and Rule Construction Act of 1995.
You might also wish to refer to general texts on statutory
construction such as:
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