By Jonathan Green.
What is a judge looking for, exactly, when she interprets an ambiguous statute? The objective public meaning of the law’s terms? The meaning its authors intended? The meaning that, given the equities, the statute should have? The judge’s answer to this question will invariably shape the kinds of evidence she relies on. If, as the Supreme Court recently said, the statute’s meaning resides in the “ordinary public meaning of its terms at the time of its enactment,” the judge will need to know the historical context in which the statute was passed, how the words in question fit within the broader statute, and how they were popularly understood at the time (by, for instance, looking to dictionaries, newspapers, novels, or law reports). If, on the other hand, a statute’s meaning is equivalent to the one its authors intended, her sources will be different. She might look to congressional floor debates, committee reports, or hearing transcripts. Alternatively, she might infer the reason the legislature enacted the statute from its context of enactment, and construe the statute’s terms to further it. If, finally, her interpretive aim is the law’s equitable meaning—if statutes are properly read in light of the basic moral principles that undergird and legitimate the law—she will need a normative account of what those principles are (and, in turn, a meta-account of how to find them). Full Article