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.