Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting

Abstract

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition exists because scholars generally give little consideration to the underlying actors and their evolving roles in the drafting process. This Article deconstructs the many steps of, and actors involved in, the statutory-drafting process. It reveals an evolving process that is the opposite of what scholars generally believe: While Congress historically did not have the capacity or resources to draft statutes well, it has evolved through the last forty years to arrive at a point where modern statutes are carefully researched by professional researchers and clearly drafted by nonpartisan professional legislative drafters, with the entire process overseen by hundreds of specialized committee staff and countless lobbyists.

This Article uses this better understanding of the evolution of Congress’s institutional competence to explain how the rise of judicial textualism over the last few decades should be viewed at least partially as a response to Congress’s improved drafting process. And not only do these practical findings provide a descriptive account of judicial behavior, they also provide a basis from which to make normative judgments about how to undertake statutory interpretation based on the era in which a statute was drafted, a method that this Article terms “intertemporal statutory interpretation.” This Article demonstrates how consideration of the evolution of the real-world legislative process can allow for more fully developed theories of statutory interpretation.

Keywords: statutory interpretation, legislation, congress, legislative drafting