ABSTRACT
If a statute or Constitutional provision is outdated, or vague or ambiguous, or seems to do something “wrong,” how should courts respond? This chapter explores theories of statutory and Constitutional interpretation and discusses cases in which the judicial interpretation of a statute or provision depends on linguistic interpretation of syntax or words. It is useful to distinguish between “interpretation,” figuring out the “linguistic” meaning of a statute or provision, and “construction,” deciding its “legal” meaning (Lieber 1839, Tiersma 1995). Two parallel arguments have troubled judges and scholars. One is the dispute between “textualism,” holding that as much as possible a statute or provisions construction should equal its interpretation, and “purposivism,” holding that legislative purpose should trump linguistic meaning. The other is the battle between “originalism,” holding that the “original public understanding” of Constitutional provisions should determine their present-day construction and what has been called “living Constitutionalism,” holding that today’s world is so different from that of the late eighteenth century that insisting on eighteenth century meanings risks making parts of the Constitution today irrelevant and responsible for injustice. This chapter discusses cases illustrative of these debates, including Rector, etc., of Holy Trinity Church v. U.S. (1892), Trop v. Dulles (1958), Maryland v. Craig (1990), and Graham v. Florida (2010). Legal theorists’ contributions to these debates are discussed, in particular those from the late Justice Antonin Scalia, because of both his extensive writing in support of textualism and originalism and his uncommon linguistic insight. This chapter also looks at specifically linguistic issues in statutory interpretation. U.S. v. Yermian (1984) provides a good example of how syntactic structure can confuse even Supreme Court justices, and Smith v. U.S. (1993) shows how lexical semantics can be problematic.
