John Copeland Nagle

Textualism's Exceptions

Textualist theories of statutory interpretation emphasize the primacy of the statutory text. Yet textualism also recognizes two exceptions that allow interpreters to depart from the plain meaning of the statutory text: an absurd results rule and a scriveners error doctrine. William Eskridge has shown that such exceptions are unprincipled; they are unnecessary as well. Textualisms exceptions conflict with the theoretical argument for textualism; undermine the need for, and likelihood of, legislative correction of statutory mistakes; and encourage claims of absurdity and drafting error that consume the precious time and other resources of judges, attorneys, and litigants alike. At the same time, the exceptions are rarely applied, they address results that could be avoided by other means, and they persist despite the absence of such rules in other interpretive contexts. Textualism, in short, would be better served by always adhering to the statutory text rather than defending any exceptions.

The Commerce Clause Meets the Delhi Sands Flower-Loving Fly

Is the Endangered Species Act constitutional? The D.C. Circuit considered that question in National Association of Home Builders v. Babbitt in 1997. More specifically, the case considered whether the congressional power to regulate interstate commerce authorized the ESAs prohibition upon building a large regional hospital in the habitat of an endangered fly that lives only in a small area of southern California. The three judges on the D.C. Circuit approached the question from three different perspectives: the relationship between biodiversity as a whole and interstate commerce, the relationship between the fly and interstate commerce, and the relationship between the hospital and interstate commerce. In this article, I argue that the constitutionality of such an application of the ESA depends upon three unanswered questions. First, I consider which effects can be aggregated for purposes of determining their effect upon interstate commerce, concluding that there must be some limit upon such aggregations. Second, I examine the potential effects that an activity may have upon interstate commerce, suggesting that Congress must provide a reasonable basis for believing that a particular resource will contribute to interstate commerce one day. And third, I consider which activities must be related to interstate commerce, arguing that the requisite effect can be judged based upon the activity that impacts an endangered species.

Newt Gingrich, Dynamic Statutory Interpreter

Dynamic Statutory Interpretation marks the culmination of a decade of Professor William Eskridges prolific scholarship. In his book, Eskridge develops his own theory of how current political values influence the interpretation of statutes enacted under different conditions in earlier periods - a theory of dynamic statutory interpretation. Ironically, Eskridge published his book just as Newt Gingrich ascended to the Speaker of the House after the 1994 congressional elections. Gingrich and the new Republican majority present challenges to Eskridges hope for a theory of statutory interpretation influenced by current policy preferences. In this essay, I seek to counter two of Eskridges central claims. First, Eskridge repeatedly claims that originalist approaches are just as indeterminate and no more constraining than dynamic approaches. This is an overstatement. Originalist statutory interpretation is not inevitably dynamic. Although originalist approaches are not completely determinate, it is demonstrably wrong to maintain that they are just as malleable as a dynamic approach. Second, by offering few interpretive constraints and encouraging reliance on current congressional values, Eskridges normative argument for dynamic statutory interpretation leaves all statutes at the mercy of the current Congress for interpretive guidance.