Misunderstanding congress: Statutory interpretation, the supermajoritarian difficulty, and the separation of powers

Georgetown Law Journal

Volumn 99, Issue 4, 2011, Pages 1119-1177

  Nourse, Victoria ^a  

^a UNIVERSITY OF WISCONSIN   (United States)

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EID: 79956158541     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (463)

1. ANTONIN SCALIA,AMATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 13 (1997).
2. John F. Manning, Textualism and Legislative Intent, 91 VA. L. REV. 419, 431-32 (2005).
3. Academic textualism refers to some textualists' preference for "expert" or "legalist" meaning. "Ordinary meaning textualism," by contrast, prefers "ordinary" or "public" meaning. For a discussion of this distinction.
4. see infra section I.B. As Judge Posner has explained in detail.
5. see RICHARD A. POSNER, HOW JUDGES THINK 204-29 (2008), judges are not law professors and are rarely influenced by academic criticism. My audience here is other law professors. This is why the term academic textualism refers to those in the academy who have urged this position, even if they themselves have relied upon individual judges for their claims. For the definition of legalist, as equated with conceptual and logical.
6. see id. at 41
7. Describing the ideal legalist decision as one grounded in syllogism. For my fuller distinction between legalist and prototypical meaning.
8. see infra Part II.
9. HENRY M. HART, JR. &ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1378 (William N. Eskridge Jr. & Philip P. Frickey eds., The Foundation Press 1994) (1958).
10. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 14 (1994) ("Traditional legal writers have no theory of legislatures in general ⋯ .").
11. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 593 (1995).
12. Even those who have critiqued simplistic views of legislative supremacy recognize that it is a widely held principle, even "intellectual boilerplate.
13. See, e.g., William N. Eskridge, Jr., Spinning Legislative Supremacy, 78 GEO. L.J. 319, 319 (1989) (interrogating the notion of legislative supremacy). In my view, legislative supremacy requires a normative theory of how the branches should relate to each other and that, in turn, requires a constitutional theory of the separation of powers.
14. See infra Part III.
15. To be sure, there is wide recognition that constitutional theory should play some role. In the mid-1990s, the Bicameralism and Presentment Clause was invoked to argue that legislative history was not "law" but has recently been reinvented as a reason to assume that statutes are finely wrought compromises reflecting bicameral structure.
16. See John F. Manning, Second-Generation Textualism, 98 CALIF. L. REV. 1287, 1306 (2010) [hereinafter Manning, Second-Generation] ("[E]mphasis on bicameralism and presentment, at a minimum, puts the theory of textualism on firmer [constitutional] ground.").
17. At the turn of the new century, scholars debated the scope of "judicial power," with no apparent resolution of the tensions between originalist Blackstonian interpretation and modern versions of anti-originalist textualism.
18. CompareWilliam N. Eskridge Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001)
19. John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 16 & n.64 (2001) [hereinafter Manning, Equity]. No scholar of the separation of powers would recognize either claim-based on bicameralism or judicial power alone-as a full theory of the separation of powers.
20. see infra note 232 (citing a variety of separation of powers theories), as fully consistent with Supreme Court precedent.
21. see infra Part III, or, in my view, as seeking to implement the Madisonian ideal of the separation of powers, Victoria Nourse, Toward a "Due Foundation" for the Separation of Powers: The Federalist Papers as Political Narrative, 74 TEX. L. REV. 447 (1996).
22. Aficionados of statutory interpretation might argue that I ignore important and in some cases brilliantly devised academic theories, like Einer Elhauge's preference-eliciting default rules, EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION (2008).
23. Adrian Vermeule's welfarist approach, ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION (2006), or Bill Eskridge's dynamic interpretation theory, ESKRIDGE, supra note 4. In my opinion, each of these approaches is a meta-theory of statutory interpretation rather than a theory of interpretation itself. Given the limits of space, and with no disrespect to any of these approaches, I focus most of this Article on academic approaches with judicial analogues: textualism, purposivism, and deal reconstruction (or at least the academic versions of these theories).
24. Academic textualists are not defined by their total rejection of purpose, see Manning, Second-Generation, supra note 7, at 1316-17 (quoting Justice Scalia), but by their rejection of legislative history-hence the term "academically oxymoronic.
25. See, e.g., Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 352 (1994) ("[T]he principal implication of th[e] ordinary reader perspective is to banish virtually all consideration of legislative history from statutory interpretation.").
26. I fully recognize that how one looks at legislative history is important, for the aim is not to pick and choose one's friends from the history, but to read the record: (1) as an external check on the tendency of judges to use internal meanings-legalist as opposed to prototypical, ordinary meaning.
27. see infra Part III (discussing legislative history as a "check"); (2) as a lexicon of ordinary meaning in a particular legislative context-not for an intent unlikely to be there (on the particular interpretive issue).
28. cf. Muscarello v. United States, 524 U.S. 125, 128-29, 142-43 (1998) (using dictionaries, surveys of press reports, and the Bible as lexical references to determine meaning); or (3) as setting the boundaries of permissible interpretation by revealing the parameters of a textual compromise.
29. see infra section II.C. A fuller explanation of these uses of legislative history awaits a future article; such an explanation would detract from the present project but is necessary to complete the theory.
30. JEREMYWALDRON, THE DIGNITY OF LEGISLATION 25 (1999).
31. This term was made famous by DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION (1974).
32. See GINA MISIROGLU, THE HANDY POLITICS ANSWER BOOK 331 (2003) (citing JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 104 (1861) ("[T]he proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts; to compel a full exposition and justification of all them which any one considers questionable; to censure them if found condemnable ⋯ .")).
33. Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 HASTINGS CONST. L.Q. 13, 16-17 (1974).
34. RICHARD L. HALL, PARTICIPATION IN CONGRESS 3 (1996) (emphasis omitted).
35. R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONALACTION 5 (1990).
36. See, e.g., RICHARD F. FENNO, JR., HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS 31 (1978);
37. MORRIS P. FIORINA, CONGRESS: KEYSTONE OF THE WASHINGTON ESTABLISHMENT 6-7 (1977);
38. LEWIS A. FROMAN, CONGRESSMEN AND THEIR CONSTITUENCIES 9 (1963);
39. JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS (2d ed. 1981);
40. KEITH KREHBIEL, PIVOTAL POLITICS: A THEORY OF U.S. LAWMAKING (1998);
41. DONALD MATTHEWS, U.S. SENATORS AND THEIR WORLD (1960);
42. MAYHEW, supra note 12, at 17 (assuming that congressmen are "single-minded reelection seekers");
43. Barry R. Weingast, A Rational Choice Perspective on Congressional Norms, 23 AM. J. POL. SCI. 245, 249 (1979) (assuming, as rational choice principle, that congressmen act as self-interested maximizers).
44. Even those who emphasize the relative freedom of representatives from constituency influence acknowledge that constituencies have "some influence" over policy decisions.
45. See, e.g., ROBERT A. BERNSTEIN, ELECTIONS, REPRESENTATION, AND CONGRESSIONAL VOTING BEHAVIOR: THE MYTH OF CONSTITUENCY CONTROL 104 (1989). On the failure of this kind of study to account for the intensity of preference or measure "activity" on issues of central importance to constituents.
46. see HALL, supra note 15, at 58 ("[T]o the extent that a member believes that her district has an interest in an issue that comes before her, the more involved in the legislative action she is likely to become.");
47. id. at 4 ("Although there are variations ⋯ and although constituents' interests are not the only (nor always the most important) determinant of legislative participation, the general finding that they matter holds true across policy domains ⋯ , decision-making forums ⋯ , and the several stages in a sequential legislative process ⋯ .").
48. MAYHEW, supra note 12, at 40.
49. HALL, supra note 15, at 60-65.
50. ARNOLD, supra note 16, at 5.
51. 136 CONG. REC. 14,564 (1990) (statement of Sen. Biden).
52. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876, 902 (2010) (citations omitted).
53. MAYHEW, supra note 12, at 106.
54. JEREMYWALDRON, LAW AND DISAGREEMENT 10 (1999).
55. There is nothing particularly new about this idea. The cynic Machiavelli warned that the legislative "tumults that many inconsiderately damn" may yet yield good laws.
56. See NICCOLÒ MACHIAVELLI, DISCOURSES ON LIVY 16 (Harvey C. Mansfield & Nathan Tarcov trans., The Univ. of Chicago Press 1996) (1513);
57. see also MILL, supra note 13, at 105 ("Representative assemblies are often taunted by their enemies with being places of mere talk and bavardage. There has seldom been more misplaced derision⋯ . A place where every interest and shade of opinion in the country can have its cause even passionately pleaded ⋯ is in itself, if it answered no other purpose, one of the most important political institutions that can exist anywhere, and one of the foremost benefits of free government.");
58. HALL, supra note 15, at 238 (quoting same).
59. Serious questions have been raised about whether Congress is in fact accountable to its citizens.
60. See Jane S. Schacter, Digitally Democratizing Congress?: Technology and Political Accountability, 89 B.U. L. REV. 641, 643-46 (2009);
61. Infra Part III.
62. Some might argue that elected state judges are differently situated but, in fact, all judges, elected or not, are constrained by the structure of their institution in the sense that they are limited by the cases and controversies brought to them. All judges, elected or not, are passive entities who must await the problems that come to them on an individualized basis in case-by-case form and are bound by law to follow precedent.
63. See NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 267-68 (1994).
64. I recognize that there is a wide political-science literature suggesting that courts are roughly responsive to democratic concerns. The attitudinal school of thought suggests that there is nothing to judging other than politics. This is far too simplistic a view, and one I have rejected elsewhere.
65. See Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 CORNELL L. REV. 61 (2009) (discussing the attitudinal studies at length).
66. The obvious reference here is to "structure-induced equilibrium," a term made popular by the political scientists Kenneth Shepsle and Barry Weingast.
67. See Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in POSITIVE THEORIES OF CONGRESSIONAL INSTITUTIONS 5, 8 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995);
68. see also Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 AM. J. POL. SCI. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium").
69. See, e.g., DAVID W. BRADY & CRAIG VOLDEN, REVOLVING GRIDLOCK: POLITICS AND POLICY FROM JIMMY CARTER TO GEORGE W. BUSH (2d ed. 2006) (study by legislative scholars);
70. William N. Eskridge Jr., Vetogates, Chevron, Preemption, 83 NOTRE DAME L. REV. 1441, 1447-48 (2008);
71. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 LAW & CONTEMP. PROBS. 3, 11 (1994) ("[I]t is difficult and time-consuming to change most prior legislative bargains.") (study by positive political theorists). Note that "McNollgast" is a pseudonym collectively adopted by three authors: Mathew D. McCubbins, Roger G. Noll, and Barry R.Weingast.
72. See generally Eskridge, supra note 31.
73. U.S. CONST. art. I, $ 7, cl. 2.
74. Id. art. I, $ 3, cl. 1.
75. Id. art. I, $ 5, cl. 2.
76. See generally ROBERT A. DAHL, HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? (2001);
77. KREHBIEL, supra note 17;
78. see also BRADY&VOLDEN, supra note 31.
79. SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOWWE THE PEOPLE CAN CORRECT IT) 51 (2006).
80. On the increasing importance of the filibuster threat.
81. see SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE?: FILIBUSTERING IN THE UNITED STATES SENATE 6 (1997) (quoting former Senator Charles Mathias in 1994 that the filibuster had become "far less visible but far more frequent" and "an epidemic");
82. GREGORY J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE 10 (2006) ("The Senate's rules that protect unlimited debate ⋯ effectively require supermajorities for the passage of legislation ⋯ ."). The practice of "holds" is what a modern filibuster looks like; a hold can be put on any legislation by a single Senator.
83. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 615 (2002).
84. Id.
85. See FRED STREBEIGH, EQUAL: WOMEN RESHAPE AMERICAN LAW 309-444 (2009) (discussing this battle).
86. Violence Against Women Act (VAWA), S. 11, 103d Cong. $ 302(e)(1) (1993) (excluding "random acts of violence unrelated to gender");
87. see also Victoria F. Nourse, Where Violence, Relationship, and Equality Meet: The Violence Against Women Act's Civil Rights Remedy, 11 WIS. WOMEN'S L.J. 1,14 n.74 (1996).
88. Nourse & Schacter, supra note 39, at 615.
89. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625, 630 (1984).
90. SCALIA, supra note 1, at 17.
91. See AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 97 (Sari Bashi trans., 2005) ("[Statutory text] is communicative; it is designed to establish a legal norm to which people will conform their behavior.").
92. Indeed, as Bill Eskridge has explained, "[m]ost interpretation is done in the lawyer's office, on the police officer's beat, and at the bureaucrat's desk." ESKRIDGE, supra note 4, at 71-72.
93. Ed Rubin is correct that even laws addressed to the citizenry are often implemented through agencies.
94. See Edward L. Rubin, Law and Legislation in the Administrative State, 89 COLUM. L. REV. 369, 369 (1989). So too, "a large and increasing body of interpretations" is made by agencies.
95. Peter L. Strauss, When the Judge Is Not the Primary Official with Responsibility To Read: Agency Interpretation and the Problem of Legislative History, 66 CHI.-KENT L. REV. 321, 321 (1990). But this tells us little about the internal dynamics of Congress (much less agencies). No politician thinks he can maintain his seat by spending more time at the Nuclear Regulatory Commission or the Federal Trade Commission than in his home state.
96. See Lawrence M. Solan, The New Textualists'New Text, 38 LOY. L.A. L. REV. 2027, 2039-44 (2005).
97. For a more analytic distinction between prototypical and legalist meaning, see infra text accompanying notes 116-23.
98. H. L. A. HART, THE CONCEPT OF LAW 125 (1961).
99. See, e.g., ESKRIDGE, supra note 4, at 9-10.
100. Id.
101. See, e.g., William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523 (1992).
102. See Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627, 640-43 (2002).
103. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 GEO. L.J. 705, 715 (1992).
104. See Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 AM. J. POL. SCI. 100, 101 (2001) ("Almost all models of bargaining ignore the possibility that the two primary negotiators want to send signals to a third party.");
105. see also James D. Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 AM. POL. SCI. REV. 577 (1994) (discussing vertical and horizontal considerations of democratic states conducting foreign policy).
106. Why does the congressman care more about the vertical market (the constituency) than the horizontal market (the court or agency)? In part the answer is timing. A representative's electoral fate depends upon the claim that she has done something;
107. A court may undo that, but the judicial intervention is most likely to be long after the election. For example, the Violence Against Women Act's civil rights remedy was passed in 1994 but was not adjudicated unconstitutional until six years-three House electoral cycles-later.
108. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, $ 40302, 108 Stat. 1796, 1941, invalidated by United States v. Morrison, 529 U.S. 598, 619 (2000). In part the answer is the power of the vertical market to trump the horizontal market. Even if the court rules against the representative, that might not yield a bad electoral outcome: it might simply add to the salience and importance of the position-taking of the representative. More people might vote for her precisely because the court rejected her position.
109. See GERRY MACKIE, DEMOCRACY DEFENDED 156 (2003) ("The Arrow theorem is a great piece of work⋯ . It is a logical exercise, it does not describe the real world."). Elsewhere I have called this evidence-based approach a "new realism."
110. See generally Nourse & Shaffer, supra note 29.
111. See POSNER, supra note 2, at 195 (suggesting that there is a political valence to the view that "[s]tudents of public choice, and political conservatives generally, being skeptical about the good faith of legislators, fearing the excesses of democracy, [and] deeming statutes unprincipled compromises ⋯ deny that statutes ever have a 'spirit' or coherent purposes that might ⋯ limit judges' discretion").
112. Manning, Second-Generation, supra note 7, at 1289.
113. For a devastating critique of interest group theory.
114. see JERRY L. MASHAW, GREED, CHAOS AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 87-96 (1997).
115. See also Jack M. Beermann, Interest Group Politics and Judicial Behavior: Macey's Public Choice, 67NOTRE DAME L. REV. 183 (1991).
116. Party models are associated with the work of E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT (1942).
117. Conditional party models with that of DAVID W. ROHDE, PARTIES AND LEADERS IN THE POSTREFORM HOUSE (1991).
118. Median voter theory is associated with the classic work of DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS (1958).
119. See KREHBIEL, supra note 17, at 6;
120. see also id. at 9 ("While U.S. parties adopt platforms in national conventions, their platforms are usually amorphous, frequently identical on many provisions, and hardly ever serve effectively as constraints during the campaign or after the election.");
121. id. at 13 (median voter theory predicts that winning voting coalitions are "usually small ⋯ near minimum-majority size").
122. As Krehbiel writes, "[c]onsider ⋯ all votes on final passage of laws enacted by the 102d and 103d Congresses (1991-94). The average size of the winning coalition on these 324 votes is 79 percent.
123. Id. at 6;
124. see also DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-2002, at 119-36 (2d ed. 2005) (reporting large coalitions for significant bills). Even among positive political theorists addressing legislative matters, there is dispute about the meaning or viability of Arrow's Theorem. Compare McNollgast, supra note 31, at 20 & n.41 (arguing that Arrow's Theorem is too pessimistic about legislatures' ability to express reasonable preferences)
125. Kenneth A. Shepsle, Commentary, Congress Is a "They," Not an "It": Legislative Intent as an Oxymoron, 12 INT'L REV. L. & ECON. 239, 241-56 (1992) (defending Arrow's Theorem).
126. Shepsle & Weingast, supra note 30, at 7;
127. see also Shepsle, supra note 30, at 27 (offering a model of legislative behavior that results in "equilibrium").
128. McNollgast, supra note 31, at 20.
129. See KREHBIEL, supra note 17, at 8-16 (arguing that median-voter theory, party-driven and conditional-party theories, Arrow's Theorem, and stability-inducing theories do not explain either the sizes of majority coalitions or gridlock).
130. This same claim could be made in reverse about structure-induced equilibria theory-that it has falsely extrapolated from the study of the House and its committee structures, not to mention its Rules Committee, which is a powerful agenda-setter absent from the Senate.
131. see generally GARY W. COX & MATHEW D. MCCUBBINS, SETTING THE AGENDA: RESPONSIBLE PARTY GOVERNMENT IN THE U.S. HOUSE OF REPRESENTATIVES (2005). No theory of legislation (as opposed to a theory of the House, Senate, or politics more generally) is complete without considering both the House and Senate.
132. Manning, Second-Generation, supra note 7, at 1306 (emphasizing bicameralism).
133. POSNER, supra note 2, at 201.
134. I have chosen for the sake of brevity to limit myself here to three of the most widely cited theories of statutory interpretation.
135. SCALIA, supra note 1, at 3-47 (reprinting an essay based on the lecture with commentary).
136. William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 MICH. L. REV. 1509, 1511 (1998) (book review).
137. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623 (1990);
138. see also SCALIA, supra note 1, at 31 ("I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law.").
139. SCALIA, supra note 1, at 20.
140. Judge Friendly once reported that when Justice Frankfurter was still teaching, he urged his students to follow a three-pronged rule for statutory interpretation: "(1) Read the statute; (2) read the statute; (3) read the statute!" HENRY J. FRIENDLY, Mr. Justice Frankfurter and the Reading of Statutes, in BENCHMARKS 196, 202 (1967).
141. Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 36 (2006).
142. For a compilation of the empirical evidence, see Grundfest & Pritchard, supra note 55, at 684. For more recent studies
143. see James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 BERKELEY J. EMP. & LAB. L. 117, 128-31 (2008) (surveying use of legislative history in tax and employment cases);
144. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1771-811 (2010) (surveying use of modified textualist interpretive methodologies among state courts of last resort);
145. Abner J. Mikva & Eric Lane, The Muzak of Justice Scalia's Revolutionary Call To Read Unclear Statutes Narrowly, 53 SMU L. Rev. 121, 123 (2000) ("As we survey decisions across the country, we observe little that has changed in the way that courts interpret statutes. In short, the Supreme Court, other federal courts, and state courts throughout the country continue to use legislative history to interpret statutes.").
146. But see Merrill, supra note 9, at 364 (finding a rise in textualism in the Supreme Court as compared to the 1980s, but concluding that only two Justices, Justice Scalia and Justice Thomas, are committed to the anti-legislative history program).
147. Eskridge, supra note 74, at 1514.
148. See generally John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387 (2003) (considering this position).
149. POSNER, supra note 2, at 194.
150. Rector of Holy Trinity Church v. United States (Church of the Holy Trinity), 143 U.S. 457 (1892).
151. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1845-50 (1998);
152. see also SCALIA, supra note 1, at 18-22;
153. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 COLUM. L. REV. 901, 905-08 (2000);
154. Eskridge, supra note 74, at 1517-19.
155. Church of the Holy Trinity, 143 U.S. at 458 (emphasis added).
156. Id. at 459.
157. Id. at 472.
158. See id. at 463.
159. SCALIA, supra note 1, at 18-22;
160. see also Eskridge, supra note 74, at 1517-19;
161. Vermeule, supra note 84, at 1845-50.
162. Manning, supra note 2, at 431, 438 ("tortuous");
163. id. at 423, 430 n.34, 431, 444 n.84, 450 ("opaque");
164. id. at 424, 429 n.30, 430, 438 n.64, 448 n.96, 450 ("complex");
165. id. at 423, 426 n.23, 431 ("cumbersome");
166. id. at 432 & n.43 ("strategic");
167. id. at 431, 432 n.43 ("arbitrary");
168. id. at 420, 425, 445 ("awkward");
169. id. at 431, 432 ("nonsubstantive");
170. id. at 431 ("highly intricate").
171. See Manning, Second-Generation, supra note 7, at 1315 ("Second-generation textualism seems to embrace the legislative process, with all its foibles.").
172. Schacter, supra note 5, at 644-45. For a wisely skeptical view of this claim.
173. see VERMEULE, supra note 8.
174. See supra note 90.
175. Merrill, supra note 9, at 372.
176. Mikva & Lane, supra note 79, at 137 ("[Justice Scalia] seems to frequently argue despite what seems to be evident ambiguity that a statute is clear.").
177. Mikva and Lane argue that there is a political tilt to textualism-that it is directed at limiting statutory scope rather than expanding it.
178. Id. at 123;
179. see also FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION 27-57, 163 (2009) (arguing that Judge Easterbrook's Statutes' Domains approach, 50 U. CHI. L. REV. 533 (1983), is openly antiregulation because it constricts statutes' reach by interpreting them to only cover matters spoken to by the text). In fact, as I argue below, there is nothing terribly libertarian about textualism as a matter of logical necessity; in Holy Trinity, for example, the textualist argument expands the regulatory scheme from the baseline prototypical meaning of manual labor.
180. SCALIA, supra note 1, at 32.
181. McNollgast, supra note 31, at 3. On the pervasive and unfortunate influence of cycling theory within political science.
182. see MACKIE, supra note 59, at 72-157.
183. Manning, supra note 2, at 431 (footnote omitted).
184. See supra section I.C.
185. Even before the economic collapse and his recantation of some portions of law and economics, one of its founders, Judge Posner, wrote that he believed that the "economic approach to legislation" was "incomplete" and he disagreed with those who had pushed it further than [he had].
186. Richard A. Posner, Legislation and Its Intepretation: A Primer, 68 NEB. L. REV. 431, 434 (1989). More recent work by positive political theorists has questioned some of the premises of strict application of economic assumptions to the political world.
187. See, e.g., John Ferejohn, Practical Institutionalism, in RETHINKING POLITICAL INSTITUTIONS: THE ART OF THE STATE 72, 73-74 (Shapiro et al. eds., 2006) (rejecting the basic economic assumption that preferences are exogenous to institutions). Even the work in political science on structure-induced equilibria shows the power of institutions to "correct" the more extreme predictions of Arrovian Theory.
188. See Shepsle &Weingast, supra note 66, at 22.
189. U.S. CONST. art. I, $ 7, cl. 2.
190. As will become clear later in the Article, there are countervailing constitutional arguments. For one thing, the Constitution itself delegates to Congress the power to create its own procedures, which allows it to delegate to committees (for example, the power to explain text with evidence of legislative meaning). More importantly, from my point of view, the constitutional question is not, as textualists' claim, "What is law?" (No one thinks legislative history is law.) The question is one of institutional choice: Which institution, the courts with their arcane common law, or the Congress with its cacophonous chorus, is a better source of ordinary meaning?
191. See generally Manning, supra note 81 (considering this question).
192. See Schacter, supra note 5, at 644-45.
193. Merrill, supra note 9, at 372 (footnotes omitted).
194. Nourse & Schacter, supra note 39, at 614-15.
195. Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 MICH. L. REV. 885, 886 (2003) (arguing that, in general, statutory interpretation theory has avoided the role of institutions).
196. For an empirical study showing this, see Dakota S. Rudesill, Comment, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 WASH. U. L. REV. 699, 702 (2010) ("On the most prestigious law faculties, only 5 percent of professors have worked for a legislative institution-local, state, federal, or international.").
197. See supra section I.A.
198. Church of the Holy Trinity, 143 U.S. 457 (1892);
199. see supra notes 83-89 and accompanying text.
200. See Solan, supra note 49, at 2041-42.
201. Eskridge, supra note 74, at 1518. That there may have been other secondary definitions does not detract from the fact that the vast majority of the debate about the statute in Holy Trinity concerned the question of forced, slave-labor-type arrangements (not to mention nativist rants about low-quality immigration) in the coal, railroad, and glass-blowing industries, all of which assume "manual labor" as the law's prototypical object (the best example). If we were to view legislative history as a trial record, it would be clear error to believe that most representatives were using the term labor in the sense that would cover the good rector.
202. See 15 CONG. REC. 5349-71 (1884) (House debate and passage);
203. 15 CONG. REC. 6057-67 (1884) (Senate postponement of bill to next session). It is true, as Vermeule has shown, that there was some debate on the scope of the legalist term "labor," by both supporters and opponents.
204. Vermeule, supra note 84, at 1845-50. One of the reactions to such objections, however, suggests the tension between popular and legalist meaning (which was apparent in the debate itself): when questioned whether the bill would cover Lord & Taylor bringing a clerk back from abroad, Rep. O'Neill replied, [I]f you mean to protect American labor here is where you can show your sympathy in the best way. Never mind about these hair-splitting technicalities with reference to the bill; . . . remedy any defects that you believe to exist in it. If we all had to run as constitutional lawyers, few of us would get elected [laughter], and remember that what the workingmen ask you to do for them is simply that this Congress shall give, so far as it can, protection to them against this infamous contract system.
205. 15 CONG. REC. 5358 (1884) (emphases added). The point, of course, is that linguistic clarity is not the measure of electoral success or real-life results for labor.
206. See 16 CONG. REC. 1781 (1885) (statement of Sen. Platt) ("I think it illustrates the folly of a class of men who suppose that bills can be better prepared for the consideration of Congress and passage by Congress by those who are not familiar with legal phraseology and with the legal profession.").
207. Church of the Holy Trinity, 143 U.S. at 472.
208. Holy Trinity is typically known as an "absurdity" case. I make no claim here about whether its reference to the Blackstonian term "spirit" is worthy of revival, nor do I make any claim about judicial use of the absurdity canon.
209. I do note that one way of thinking about absurdity is to view it as arising when there is a strong conflict between legalist meaning (all workers) and prototypical meaning (manual labor or service). Compare, for example, standard examples of absurdity: "bloodletting" (prototypical meaning: fight;Legalist meaning: any bloodletting including by a surgeon);
210. Prison escape (prototypical meaning: escape to flout law; legalist meaning: any escape even if to escape fire).
211. 16 CONG. REC. 1782 (1885) (statement of Sen. Platt).
212. See ADRIAN VERMEULE, LAW AND THE LIMITS OF REASON 2-3 (2009);
213. see also POSNER, supra note 2, at 41.
214. There is an analogy here, as well, to H. L. A. Hart's famous distinction between core and penumbral meaning.
215. See DAVID LYONS, MORAL ASPECTS OF LEGAL THEORY: ESSAYS ON LAW, JUSTICE, AND POLITICAL RESPONSIBILITY 84-85 (1993).
216. The emphasis here should be on "may." In some contexts, the exact opposite proposition may occur. My only claim is that textualism is not always a recipe for relative restraint or even the narrowing of a statute's boundaries.
217. ESKRIDGE, supra note 4, at 4 (quoting the reporter's commentary on Eyston v. Studd, (1574) 75 Eng. Rep. 688 (K.B.) 695-96).
218. Church v. Thomson, 1 Kirby 98, 99 (Conn. Super. Ct. 1786);
219. Sumner v. Williams, 8 Mass. (1 Tyng) 162, 183 (1811);
220. Commonwealth v. Andrews, 2 Mass. (1 Tyng) 14, 30 (1806);
221. Miller's Lessee v. Holt, 1 Tenn. 111, 116 (Tenn. Super. L. & Eq. 1799);
222. Olin v. Chipman, 2 Tyl. 148, 150 (Vt. 1802);
223. see also JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 131 (Alexander Campbell Fraser ed., Clarendon Press 1894) (1690) ("[D]oth it not often happen, that a man of an ordinary capacity, very well understands a text, or a law, that he reads, till he consults an [expert] expositor . . . [who] makes the words signify either nothing at all, or what he pleases."). Special thanks to Asher Steinberg, Georgetown University Law Center Class of 2011, for discovering this kernel of wisdom in a number of nineteenth-century cases.
224. Manning, supra note 2, at 434-35.
225. Molot, supra note 78, at 48.
226. Merrill, supra note 9, at 372.
227. Manning, supra note 2, at 435 (footnote omitted).
228. Chisom v. Roemer, 501 U.S. 380, 404 (1991) (Scalia, J., dissenting) (emphases added). In the constitutional context, he is even more insistent.
229. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) ("In interpreting this text, we are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary . . . meaning.'") (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).
230. See Solan, supra note 49, at 2046-47.
231. Miranda McGowan, Do as I Do, Not as I Say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, 78 MISS. L.J. 129, 149 (2008) (emphasis added).
232. CROSS, supra note 96, at 166.
233. Respondents were more likely to agree that "ordinary readers would disagree about the correct reading" of a statute than that "the statute, as applied to [the] facts, is ambiguous" Furthermore, ideological bias more greatly influenced responses to the "ambiguous" question than the "ordinary readers" question.
234. See Ward Farnsworth, Dustin F. Guzior & Anup Mulani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation 6, 8-12 (Univ. of Chicago Public Law and Legal Theory Working Paper No. 280, 2009), available at http://www.law.uchicago.edu/files/file/280-am-ambiguity.pdf. Farnsworth, Guzior and Mulani usefully distinguish between plain meaning (an "internal view") and ordinary meaning ("external").
235. See Molot, supra note 78, at 36 ("[S]o long as textualism is on the attack . . . little attention is devoted to the interpretive methodology textualism offers to replace strong purposivism and on variations within the textualist movement.").
236. See, e.g., Vermeule, supra note 84, at 1852-53.
237. See CROSS, supra note 96, at 82-83.
238. Summarizing this evidence and relying on Daniel J. Bussel, Textualism's Failures: A Study of Overruled Bankruptcy Decisions, 53 VAND. L. REV. 887, 909-10 (2000)
239. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331, 350 tbl.8 (1991)
240. Michael E. Solimine & James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 TEMP. L. REV. 425, 446 (1992).
241. Note that there is no logical connection between public or prototypical meaning and Congress;
242. Congress may use terms in legalist or prototypical fashion. Congress, for example, may mean for the term "utilize" to cover all cases of use (the legalist and conceptual meaning), or it may mean for the term "utilize" to cover only particular cases involving presidential transitions.
243. See Public Citizen v. U.S. Dep't. of Justice, 491 U.S. 440, 452-54 (1989).
244. See Manning, Equity, supra note 7, at 16 & n.64 ("Textualists believe that legislation supposes that legislators and judges are part of a common social and linguistic community, with shared conventions for communication. Accordingly, they argue that a faithful agent's job is to decode legislative instructions according to the common social and linguistic conventions shared by the relevant community.").
245. See generally STANLEY FISH, IS THERE A TEXT IN THIS CLASS? THE AUTHORITY OF INTERPRETIVE COMMUNITIES 338-54 (1980).
246. Textualists are not alone in this claim, which arises frequently in game-theory analyses of statutory interpretation.
247. See Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U. PA. L. REV. 1417, 1442-43 (2003).
248. HART & SACKS, supra note 3, at 1374.
249. Church of the Holy Trinity, 143 U.S. 457 (1892).
250. Id. at 463-64.
251. See Chomsky, supra note 84, at 905-08;
252. Eskridge, supra note 74, at 1517-19.
253. See generally Vermeule, supra note 84.
254. See Vermeule, supra note 84, at 1850-51.
255. See Chomsky, supra note 84, at 923.
256. HART & SACKS, supra note 3, at 1378.
257. Nourse & Schacter, supra note 39.
258. See generally Victoria F. Nourse, A Tale of Two Lochners, 97 CALIF. L. REV. 751, 757 (2009)
259. Arguing that the revisionist incorrectly read the Court's decision in Lochner v. New York, 198 U.S. 45 (1905), as a political decision because of the political nature of the Executive Branch understanding of-and response to-the case);
260. Nourse & Shaffer, supra note 29, at 85 (discussing claims that new legal realism should focus on institutional forces).
261. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 142 (1893).
262. See Gerald C. MacCallum, Jr., Legislative Intent, 75 YALE L.J. 754, 771-72 (1966).
263. Church of the Holy Trinity, 143 U.S. 457 (1892).
264. Id. at 464-65 (quoting H.R. REP. NO. 48-444 (1884), reprinted in 15 CONG. REC. 6059 (H. Comm. on Labor Rep. on H.R. 2550 and H.R. 3313));
265. see also Vermeule, supra note 84, at 1843-44.
266. See Act of Mar. 3, 1891, ch. 551, $ 5, 26 Stat. 1085;
267. see also Vermeule, supra note 84, at 1841-42 & n.38.
268. William E. Forbath, The Ambiguities of Free Labor: Labor and the Law in the Gilded Age, 1985 WIS. L. REV. 767, 768 (outlining movements by state and federal judges to defend free labor by striking down state economic regulations, maximum hour laws and other labor legislation).
269. See Vermeule, supra note 84, at 1846-47.
270. The claim of constitutionality is almost impossible for moderns to see unless they are aware of the history of equal protection, which was much more vibrant in the late nineteenth century and went by the name of "class legislation." Class legislation was an argument that the legislature had exercised improper selectivity, singling out a particular group for harsher treatment than others; its most famous nineteenth-century example is.
271. Barbier v. Connelly, 113 U.S. 27 (1885)
272. which preceded Yick Wo v. Hopkins, 118 U.S. 356 (1886), in addressing discrimination against the Chinese. The trigger for class legislation arguments was not substantive due process, as some have argued.
273. see HOWARD GILLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993), but statutory exemptions. This is why adding exemptions to the bill might have appeared to pose a constitutional problem.
274. V.F. Nourse & Sarah A. Maguire, The Lost History of Governance and Equal Protection, 58 DUKE L.J. 955, 972, 987 (2009).
275. Bargaining theorists would tend to say that, in such a situation, the deal should be honored and the language interpreted broadly because that was the price of bill passage. Even if we knew this to be true (which we do not), it should not result in a legalist or peripheral interpretation of the statutory term labor.
276. As game theory posits, the price of the deal cannot be measured by those who were inveterate opponents.And there is significant evidence that the legalist interpretation was adopted by the opponents of the bill because they could not openly oppose the bill on the merits. Indeed, applying bargaining theory in this way can easily elevate a loser's claim into winner's status.
277. See infra section II.C.
278. The suit was ultimately instigated by a railroad financier.
279. See Chomsky, supra note 84, at 910 ("John Stewart Kennedy, a prominent banker, financier, and railroad director").
280. Id. at 927 (emphases added) (quoting 15 CONG. REC. 5358 (1884) (statement of Rep. O'Neill)).
281. Compare Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988)
282. Jerry Mashaw, As If Republican Interpretation, 97 YALE L.J. 1685 (1988).
283. Sunstein, supra note 155 (claiming that the first principle of liberal republicanism is "deliberation in government").
284. See Jonathan R. Macey, The Missing Element in the Republican Revival, 97 YALE L.J. 1673, 1674 (1988).
285. See supra section I.B (discussing the Violence AgainstWomen Act).
286. See BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 62 (3d ed. 2007).
287. Manning, Second-Generation, supra note 7, at 1316-17 (quoting Justice Scalia).
288. See Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 537 (1983) ("If the question of a statute's domain may not often be resolved by reference to actual design, it may never properly be resolved by reference to imputed design. To impute a design to Congress is to engage in an act of construction.").
289. POSNER, supra note 2, at 200.
290. Id.
291. I make no claim that legalist meaning always expands meaning, only that it may expand meaning. As a general rule, if we define prototypical meaning as the best example and legalist meaning as all examples, the tendency will be for legalist meaning to be more expansive than prototypical meaning. I do not foreclose the possibility, and my argument does not depend upon the claim, that there may be cases in which the opposite might occur, in which prototypical meaning might expand legalist meaning.
292. Moreover, in some cases, expansion or contraction may depend upon which piece of a text is pulled out of the statute to consider. For example, consider Public Citizen v. Department of Justice, 491 U.S. 440 (1989).
293. In that case, the term "utilize" might seem to cover the American Bar Association if "utilize" is considered in both its prototypical (best example) and legalist (all examples) senses. But the case looks quite different, in my view, if we consider the question as one of the prototypical "advisory committee." This question of which piece of text one chooses to focus upon may be central to the interpretation.
294. See VERMEULE, supra note 8, at 46-49.
295. See Grundfest & Pritchett, supra note 55, at 652-53.
296. Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989).
297. See Eskridge & Ferejohn, supra note 54.
298. See Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207 (2007) [hereinafter Rodriguez & Weingast, Paradox];
299. Rodriguez &Weingast, supra note 135.
300. See John Ferejohn & Barry Weingast, Limitation of Statutes: Strategic Statutory Interpretation, 80 GEO. L.J. 565 (1992);
301. McNollgast, supra note 31, at 3;
302. McNollgast, supra note 56;
303. McNollgast, The Theory of Interpretive Canon and Legislative Behavior, 12 INT'L REV. L. & ECON. 235 (1992).
304. In this section, I consider only game theory models. Positive political theory (PPT) can also be used much more loosely.
305. See Daniel A. Farber & Philip P. Frickey, Foreword: Positive Political Theory in the Nineties, 80 GEO. L.J. 457, 457-63 (1991) (discussing various meanings of PPT).
306. See, e.g., Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800, 817 (1983).
307. See, e.g., POSNER, supra note 2, at 194 (quoting Judge Learned Hand, who sought to "reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision").
308. When textualists cite positive political theorists as allies, they are typically citing to that strain of positive political theory that Gerry Mackie calls the "irrationalist" thesis, following William Riker's work on Arrow's Theorem.
309. See MACKIE, supra note 59, at 23, 156.
310. There is some difference on this issue among positive political theorists.
311. See, e.g., Shepsle, supra note 65.
312. McNollgast, supra note 31, at 7.
313. Rodriguez &Weingast, Paradox, supra note 168, at 1220.
314. See supra note 148 and accompanying text.
315. McNollgast, supra note 31, at 9.
316. See id.
317. Id. at 5.
318. Id. at 11 n.23.
319. Id. at 25.
320. McNollgast, supra note 56, at 708.
321. See id.
322. Id. at 710.
323. Id. at 711-12.
324. Rodriguez &Weingast, supra note 135, at 1427.
325. Rodriguez &Weingast, Paradox, supra note 168, at 1215, 1218.
326. Id. at 1220-21.
327. McNollgast, supra note 31, at 21.
328. Rodriguez & Weingast, supra note 135, at 1501-10 (discussing Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir. 1970), rev'd, 401 U.S. 424 (1971)). Note that this analysis does not necessarily apply to any of the other examples used by Rodriquez andWeingast.
329. See 110 CONG. REC. 13,492-94 (1964) (statement of Sen. Tower) (discussing Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964), reprinted in 110 CONG. REC. 5662-64 (1964));
330. see also Rodriguez &Weingast, supra note 135, at 1505-06.
331. The first Tower Amendment was offered post-cloture on June 11, 1964. 110 CONG. REC. 13,492 (1964) (amend. no. 606). Its language is quoted in full infra note 209.
332. Rodriguez & Weingast, supra note 135, at 1506 ("Tower's first amendment was defeated on a roll call vote, 38 to 49.").
333. 110 CONG. REC. 13,724 (1964) (amend. no. 952);
334. see also Rodriguez & Weingast, supra note 135, at 1506.
335. Rodriguez &Weingast, supra note 135, at 1506.
336. Id. at 1507 (arguing that the Griggs Court decided that "the expressed understanding of the ardent supporters (Humphrey's view about what the Tower Amendment meant) should determine the meaning of an ambiguous statute" but pointing out that "by accepting the second Tower amendment, the ardent supporters receded from this view").
337. 110 CONG. REC. 13,492 (1964). For the text of the amendment, see infra note 209.
338. Griggs v. Duke Power Co., 420 F.2d 1225, 1239-40 (4th Cir. 1970), rev'd, 401 U.S. 424 (1971).
339. Rodriguez & Weingast, supra note 135, at 1508 ("The fact that a majority of the Senate voted in favor of the amendment makes the supporters' position-essentially the position that . . . would prevail later in Griggs-precarious."). Rodriguez and Weingast also emphasize that even though there was no recorded vote on the second Tower Amendment, it would have included "the thirty-eight who made up the group supporting the first Tower amendment," and that this number was sufficient to prevent cloture.
340. See id. at 1507.
341. Note in regard to the last claim that, once cloture has been invoked, which it had been by June 11, moderates had no power to filibuster again.
342. See KREHBIEL, supra note 17, at 13, 101;
343. see also BRADY & VOLDEN, supra note 31, at 1, 15, 156.
344. This is too simplistic a calculus, as the concessions extorted may be completely unrelated to the bill in question or even the text. As we will see below, one of the problems with contract-based models is that there is no guarantee that bargaining occurs on questions of text at all, or whether the bargaining occurs across bills, nominations, or any other legislative matter. See infra text accompanying notes 216-23.
345. See HUGH DAVIS GRAHAM, THE CIVIL RIGHTS ERA 142 (1990) ("But hard bargaining for Senate cloture dominated the next three months, and necessarily involved some trade-offs in response to Dirksen's artful probes.");
346. John G. Stewart, Thoughts on the Civil Rights Bill, in THE CIVIL RIGHTS ACT OF 1964: THE PASSAGE OF THE LAW THAT ENDED RACIAL SEGREGATION, at 93, 113 (Robert D. Loevy ed., 1997) (notes of John G. Stewart, an important congressional staff member, stating that "[n]o agreements will be made until the quid pro quo has been established; namely, that we get cloture activity from Dirksen");
347. id. at 117 ("In short, we want cloture on the whole bill ⋯ and if Dirksen is not willing to go this route then there is really no business to talk to him about his amendments.");
348. see also id. at 141 ("Those few amendments which were adopted after cloture resulted from the persistent efforts of their sponsors and from Humphrey's willingness to be accommodating and helpful wherever he could.").
349. The Mansfield-Dirksen substitute was introduced on May 26; the cloture vote occurred on June 10. Id. at 129;
350. John G. Stewart, The Civil Rights Act of 1964: Tactics II, in THE CIVIL RIGHTS ACT OF 1964: THE PASSAGE OF THE LAW THAT ENDED RACIAL SEGREGATION, supra, at 275, 282.
351. The first Tower Amendment was offered on June 11. 110 CONG. REC. 13,492 (1964).
352. The second Tower Amendment was agreed to by voice vote on June 13. 110 CONG. REC. 13,724 (1964).
353. Rodriguez & Weingast, supra note 135, at 1504 ("[M]oderate legislators worried that section 703(h) would nonetheless be read by the courts to outlaw employments tests. Senator Tower's introduction of an amendment after the presentation of the Clark-Case memorandum provides the best evidence of this concern among the moderates."). If "pivotal legislators" were not convinced by the Clark-Case memorandum and required a testing amendment to approve of the bill, it would have been included in the Mansfield-Dirksen substitute.
354. Id. (linking Senator Tower to pivotal moderate legislators);
355. cf. id. at 1507 (recognizing that Tower was an "ardent opponent of the Act");
356. id. at 1508 (recognizing that "Tower and his ardentopponent colleagues would vote against the Civil Rights Act"). Because of this, Rodriguez and Weingast claim that Humphrey's costly concession to the Tower Amendment had to be directed to moderates. No doubt Humphrey's staff had been negotiating with moderates, but it is also true that the moderates were not empowered to filibuster the entire bill after cloture had been invoked.
357. Rodriguez and Weingast take the conventional view that the Motorola decision was a proxy for "disparate impact" analysis rejected by Tower, conceded by Humphrey, and then wrongly accepted by the Griggs Court. See id. at 1501-09.
358. In fact, as Bill Eskridge has argued, the idea that disparate impact was in the minds of the legislators in 1964 is highly anachronistic. The concept simply did not exist. See ESKRIDGE, supra note 4, at 74 ("[T]he legal world was stunned by the Supreme Court's unanimous adoption of a disparate impact approach in Griggs ⋯ .").
359. There is also no indication from the record itself, other than the discussion about Motorola, with which all Senators disagreed, that the parties were actually arguing about the concept in the ways that we understand it today. Lawyers tend to read into the discussion the present of the bill, rather than its inchoate past. Both sides agreed that Motorola went too far before the second Tower Amendment was accepted. But Motorola cannot be equated with disparate impact because disparate impact is rebuttable evidence of discrimination whereas Motorola created a per se rule. Nor can Motorola be equated with Griggs: the EEOC's "job-related" rule attempted to eliminate the most egregious forms of abuse. See id.
360. Senate rules require that all post-cloture amendments must be filed before the cloture vote. See Stewart, Thoughts on the Civil Rights Bill, supra note 203, at 143 ("Once cloture has been invoked, only those amendments which have been 'presented and read' [prior to the cloture vote] qualify for consideration ⋯ .").
361. To be sure, when the Civil Rights Act of 1964 was passed, it was still possible to filibuster by amendment, but there is no indication, nor argument by Rodriguez and Weingast, that this is their claim. In fact, any thought there would be such a filibuster was soon put to rest in the actual bill. Stewart, Thoughts on the Civil Rights Bill, supra note 203, at 141.
362. Rodriguez & Weingast, supra note 135, at 1506. The first amendment provided as follows: On page 35, after line 20, insert the following new subsection: (h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to give any professionally developed ability test to any individual seeking employment or being considered for promotion or transfer, or to act in reliance upon the results of any such test given to such individual, if- (1) in the case of any individual who is seeking employment with such employer, such test is designed to determine or predict whether such individual is suitable or trainable with respect to his employment in the particular business or enterprise involved, and such test is given to all individuals seeking similar employment with such employer without regard to the individual's race, color, religion, sex, or national origin, or (2) in the case of any individual who is an employee of such employer, such test is designed to determine or predict whether such individual is suitable or trainable with respect to his promotion or transfer within such business or enterprise, and such test is given to all such employees being considered for similar promotion or transfer by such employer without regard to the employee's race, color, religion, sex, or national origin.
363. 110 CONG. REC. 13,492 (1964) (emphases added). The second Tower Amendment was modified as follows before passage: On page 44, line 15, insert the following after the word "origin" nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.
364. 110 CONG. REC. 13,724 (1964). The resulting statute reads: Seniority or merit system; quantity or quality of production; ability tests; compensation based on sex and authorized by minimum wage provisions. Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.
365. 42 U.S.C. § 2000e-2(h) (2006) (emphases added).
366. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and disadvantaged groups." See Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964), reprinted in 110 CONG. REC. 5662-64 (1964).
367. See, e.g., 110 CONG. REC. 13,503-04 (1964) (statement of Sen. Case) ("Discrimination could actually exist under the guise of compliance with the statute.").
368. Id. at 13,504 (statement of Sen. Humphrey) ("These tests are legal. They do not need to be legalized a second time⋯ . That is why I said I did not think the proposed new language was necessary.");
369. see also id. at 13,503-04 (statement of Sen. Case) ("I object to the amendment suggested by the Senator from Texas because, first, it is unnecessary ⋯ . The amendment is unnecessary ⋯ .").
370. Senator Miller asked the managers whether the right to give tests was already authorized under subparagraph (h) of the then extant bill: "I believe that during the development of the [substitute] amendment, the question of its not being an unfair labor practice for an employer to provide for the furnishing of employment [testing] pursuant to a bona fide ⋯ merit system ⋯ was discussed." Id. at 13,504.
371. Senator Humphrey replied that this was indeed covered by subparagraph (h). See id.
372. See id. at 13,503-04.
373. See CHARLES W. WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEGISLATIVE HISTORY OF THE 1964 CIVIL RIGHTS ACT (1985);
374. see also THE CIVIL RIGHTS ACT OF 1964, at vii (Robert D. Loevy ed., 1997) ("This titanic legislative struggle produced the longest continuous debate ever held in the U.S. Senate.").
375. The first sentence in section (h) addresses bona fide merit systems. See 42 U.S.C. § 2000e-2(h) (2006).
376. The second sentence is the testing provision. See id.
377. Because the second sentence does not contain the term "bona fide," one standard lawyerly inference is that this qualification was not intended; even if supporters like Senator Miller, see supra note 212, seemed to believe testing was already covered under the bona fide provisions.
378. On another reading, however, the sentences should be read in harmony: why should one want to permit non-bona-fide testing if one wanted to bar non-bona-fide merit systems? Even Senator Tower admitted during the debate on the first Tower Amendment that his amendment would not sanction discriminatory tests. See 110 CONG. REC. 13,492 (1964).
379. Moreover, unlike the first sentence, which explicitly bars bona fide systems intended to discriminate, the second sentence provides that testing may not be used to discriminate. See 42 U.S.C. § 2000e-2(h). Special thanks to President Reagan's former General Counsel to the Equal Employment Opportunity Commission, Professor Charles Shanor, for affirming that this interpretation is consistent with the EEOC's understanding.
380. Groseclose & McCarty, supra note 57.
381. See Fearon, supra note 57.
382. MAYHEW, supra note 12, at 106.
383. See Rodriguez & Weingast, supra note 135, at 1526-29.
384. See supra note 212.
385. 110 CONG. REC. 13,504 (1964).
386. See supra note 58.
387. Ferejohn, supra note 101, at 74.
388. WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 8 (1994).
389. Mashaw, supra note 155, at 1686.
390. John F. Manning, Statutory Pragmatism and Constitutional Structure, 120 HARV. L. REV. 1161, 1163 (2007).
391. A claim based on the separation of powers is different from a claim that structure in some way supports a particular theory of statutory interpretation. See infra note 267 (discussing John Manning's claims about why structure militates against purposivism).
392. See Victoria Nourse, The Vertical Separation of Powers, 49 DUKE L.J. 749 (1999) [hereinafter Nourse, Vertical];
393. Nourse, supra note 7;
394. V. F. Nourse, Toward a New Constitutional Anatomy, 56 STAN. L. REV. 835 (2004) [hereinafter Nourse, Anatomy].
395. For a succinct and careful description of formalism and functionalism, see Kathleen M. Sullivan, Comment, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 HARV. L. REV. 78, 91-101 (1995).
396. On the relationship between formalism and functionalism, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1530 (1991) (arguing that the debate surrounding both models "hangs in midair, moored to no grander objective");
397. see also Peter L. Strauss, Formal and Functional Approaches to Separation-of-Powers Questions-a Foolish Inconsistency?, 72 CORNELL L. REV. 488, 488-94 (1987) (rejecting formalism in favor of functionalism for the administrative levels of government).
398. Compare Bowsher v. Synar, 478 U.S. 714 (1986)
399. and INS v. Chadha, 462 U.S. 919 (1983)
400. with Mistretta v. United States, 488 U.S. 361 (1989)
401. and Morrison v. Olson, 487 U.S. 654 (1988).
402. See Eskridge, supra note 7;
403. Manning, Equity, supra note 7.
404. For some sophisticated theories, see Brown, supra note 229, at 1514-17, 1529-31 (arguing that separation of powers disputes involve important questions of individual rights);
405. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123, 124 (1994) (emphasizing the checks and balances between the President and Congress);
406. Harold J. Krent, Separating the Strands in Separation of Powers Controversies, 74 VA. L. REV. 1253, 1256 (1988) (arguing that "the Constitution circumscribes the power of the branches by limiting the ways each can act");
407. Thomas W. Merrill, The Constitutional Principle of Separation of Powers, 1991 SUP. CT. REV. 225, 228 (explaining a "minimal" conception of the separation of powers);
408. Strauss, supra note 229, at 522 ("[C]ourts should view separation-of-powers cases in terms of the impact of challenged arrangements on the balance of power among the three named heads of American government ⋯ .");
409. Paul R. Verkuil, Separation of Powers, the Rule of Law and the Idea of Independence, 30 WM. & MARY L. REV. 301, 303-07 (1989) (emphasizing a rule-of-law approach that minimizes conflicts of interest).
410. See Nourse, Anatomy, supra note 228, at 751-54;
411. Nourse, Vertical, supra note 228, at 839-41.
412. Morrison, 487 U.S. at 698 (Scalia, J., dissenting).
413. Nourse, supra note 7, at 474, 486, 495.
414. Nourse, Anatomy, supra note 228, at 900.
415. See U.S. CONST. arts. I, § 7, II, § 4.
416. U.S. CONST. arts. I, § 1, II, § 1, III, § 1.
417. See Nourse, Anatomy, supra note 228, at 839;
418. see also Nourse, Vertical, supra note 228, at 761-68 (demonstrating how changes in vertical relationships can change horizontal structure).
419. THE FEDERALIST NO. 51, at 337 (James Madison or Alexander Hamilton) (Cosimo 2006).
420. Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) ("[A] great principle of constitutional law is not susceptible of comprehensive statement in an adjective.") (Cardozo, J., concurring in part and dissenting in part).
421. See, e.g., Boumediene v. Bush, 553 U.S. 723 (2008);
422. Hamdan v. Rumsfeld, 548 U.S. 557 (2006);
423. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
424. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 84-88 (2009).
425. Manning, supra note 81, 2,391-92.
426. INS v. Chadha, 462 U.S. 919, 951 (1983).
427. The emphasis here should be placed on executive agencies. There is nothing in this argument that depends upon the controversy about independent agencies (a controversy I find overblown). As a realistic matter, a President can fire the heads of independent agencies if he has a good reason. This has proven little barrier to a unified executive department as an administrative matter; this is, however, a far different claim than one that the President has unitary powers in all matters, such as war. See Victoria F. Nourse & John P. Figura, Toward a Representational Theory of the Executive, 91 B.U. L. REV. 273, 294-302 (2011)
428. (reviewing STEPHEN G. CALEBRESI & CHRISTOPHER S. YOO, PRESIDENTIAL POWER FROM WASHINGTON TO BUSH (2008)).
429. See John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 715-18 & n.181 (1997). (Pubitemid 127436838)
430. Chadha, 462 U.S. at 964 (Powell, J., concurring).
431. Eskridge, supra note 6, at 321.
432. Id. at 322.
433. See Nourse, Anatomy, supra note 228;
434. Nourse, Vertical, supra note 228.
435. I am not the only scholar to eschew this exercise. See Merrill, supra note 232.
436. See, e.g., Bowsher v. Synar, 478 U.S. 714, 727, 746 (1986);
437. Chadha, 462 U.S. at 951.
438. Nourse, Vertical, supra note 228, at 759.
439. Id.
440. Id.
441. See Nourse, Anatomy, supra note 228;
442. Nourse, Vertical, supra note 228.
443. The Virginia Plan, which in amended form became our Constitution, originally provided that "members of the second branch of the National Legislature ought to be elected by those of the first." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 20 (Max Farrand ed., rev. ed. 1966) (recording the May 29, 1787 resolutions proposed by Edmund Randolph of Virginia).
444. The New Jersey Plan, a competing proposal supported by a minority of States, provided the President with no veto power. See id. at 242-45.
445. The Virginia Plan proposed that the Executive (which was thought by many to be made up of multiple persons) be appointed by the Congress. See id. at 21 ("Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of years ⋯ .").
446. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 257, at 35 (statement of James Madison of Virginia, July 17, 1787).
447. Nourse, Vertical, supra note 228, at 758.
448. Id.
449. Cases like Bowsher v. Synar, 478 U.S. 714, 727, 746 (1986)
450. or Morrison v. Olson, 487 U.S. 654 (1988), exemplify this risk because they put substantial power in the hands of persons who have no electoral constituency.
451. As John Manning has written, even without the filibuster, bicameralism and presentment impose "an effective supermajority requirement for legislation," which gives "political minorities ⋯ extraordinary power to block legislation or ⋯ to insist upon compromise." John F. Manning, The Eleventh Amendment and the Reading of Precise Constitutional Texts, 113 YALE L.J. 1663, 1701, 1717 (2004).
452. Church of the Holy Trinity, 143 U.S. 457 (1892).
453. See, e.g., Eskridge, supra note 31, at 1443-44.
454. As we have seen above, it may be important to look at losers' amendments or statements to gain a proper context, but positive political theorists are correct in their warning that it would be improper for a court, particularly given the supermajoritarian difficulty, to find the meaning of a law in the statements of those who opposed it. See supra section II.C.2.
455. This is certainly true in cases like the Tower Amendment and the Civil Rights Act of 1964 (which we know was filibustered). To adopt the minority view in the Tower case poses the risk of importing the filibuster rule into the statutory interpretation enterprise. See supra section II.C.2 (discussing game theory and Tower).
456. Professor Manning seems to suggest that supermajoritarianism and bicameralism argue for precisely the opposite result. See Manning, Second-Generation, supra note 7, at 1315 ("If the constitutionally or legislatively prescribed rules of procedure give minorities and preference outliers a disproportionate voice in the legislative process, the judge's job is to give effect to those procedures by enforcing a clear but awkwardly written text.").
457. Under Manning's view, features like bicameralism and supermajoritarianism force compromise, and courts should not undermine that incentive. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1650-51 (2001). There is no question that supermajoritarianism forces compromise and that this may be legislatively virtuous. The question remains whether courts should defer to minorities, as opposed to majorities. There are three problems with Professor Manning's view-from-structure: (1) courts do not create the incentive to compromise; it is demanded by the Constitution ex ante; (2) given the strength of the internal incentive, no external force like a court ruling or rule of statutory interpretation is likely to change it (senators do not sit around reading slip sheets; horizontal communication between the departments is weak and full of noise except in the most politically salient cases); (3) courts that seek to perfect this vision of structure in statutory interpretation risk reconstructing the position of a legislator who opposed the statute. Surely the Constitution does not require that courts interpret statutes against the majority will or exacerbate the already supermajoritarian character of the Congress. Game theory certainly does not support this, nor in my opinion does the Constitution. The only way to tell whether there was in fact a deal that can be reconstructed is to look at legislative history and then to remember that, as textualists rightly claim, it is unlikely to resolve the interpretive issue before the Court.
458. See VERMEULE, supra note 8.
459. Nourse, supra note 7, at 470-71.
460. Farnsworth et al., supra note 129.
461. See supra section II.B.
462. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 505 (1989).
463. This is a minimalist use of history and is theoretically different from other uses, a topic I do not address in this Article. See supra note 10.