McSlarrow_12-1987
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Judicial Editing and Congressional Inaction

Much has been written in recent years on how courts construe law, whether it is the Constitution or a statute. The discussion typically addresses the judiciary's search for the "intent" of the framers or legislators and reflects a continuing debate on what limitations our system of government places on a court when it applies written law to the facts of a specific case. This debate has, for the most part, focused on the extent to which courts usurp legislative functions by interpreting statutes in a way that adds their own ideological gloss.

Unfortunately, the ambiguities frequently found in texts of statutes passed by Congress invite—even demand—resort to external aids of interpretation, if only because the legislative branch has sometimes embraced ambiguity for political reasons with every expectation that the judiciary would fill both the political void and the text of a statute. As a result, the judiciary increasingly has had to search for the majority will with relatively little help from the legislature.

Is the resort to anything other than the text of laws ever inappropriate? Phrases such as "original intent" and "evolving standards of decency" and "supported by the legislative history" reinforce the impression that the text of a statute rarely serves to resolve its meaning. When interpreting a statute that is ambiguous, internally contradictory, or potentially...

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