Saint Louis University Law Journal
This Article contends that ordinary meaning analysis based on dictionaries and language canons cannot be reconciled with the faithful agent model. Fidelity to Congress as a principal entails fidelity to its lawmaking enterprise, not to words or sentences divorced from that enterprise. Congress has indicated that it does not value dictionaries as part of its lawmaking process, and it ascribes at most limited weight to language canons in that process. Further, Justices advocating ordinary meaning analysis too often use dictionary definitions, and language canons such as the rule against surplusage, the whole act rule, and ejusdem generis, in ways that are indifferent to Congress’s background understandings when drafting and voting on statutory text. Indeed, given the extreme subjectivity of the Court’s dictionary approach and the intrinsic malleability of the language canons, ordinary meaning analysis reflects broad judicial discretion more than a commitment to the principal-agency relationship. The interpretive asset most consistent with the Court’s role as a faithful agent is instead legislative history.
James J. Brudney,
Faithful Agency Versus Ordinary Meaning Advocacy, 57 St. Louis U. L.J. 975
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/545