Recommended Citation
Danieli Evans, What Would Congress Want? If We Want to Know, Why Not Ask?, 81 U. CIN. L. REV. 1191 (2013), https://digitalcommons.law.uw.edu/faculty-articles/1082
Publication Title
University of Cincinnati Law Review
Keywords
statutory interpretation
Document Type
Article
Abstract
Judges often disagree about which interpretation of a statute is most faithful to 'legislative intent.' If judges are concerned about adhering to democratic preferences when interpreting statutes, why not ask Congress what it would prefer? I propose a procedure that would enable the Court, in a case where Justices are divided over the meaning of a statute, to submit both sides' reasoning to Congress, and Congress may choose to vote on its preferred of the alternative rulings the Court puts before it. Congress's preferences would be evidentiary only; they would not bind the Court to make one decision or another. Insofar as the Court is concerned with avoiding a decision that Congress will overrule, this procedure could provide more reliable and direct evidence of what the contemporary Congress wants, than does postenactment legislative history, canons of construction, or other means judges use to adduce legislative intent. This procedure would enable a partnership between the Court and Congress in updating and adapting the law to ever-changing circumstances; a partnership that draws upon each branch's particular competencies-Congress being democratic, the Court accounting for overarching constitutional values and ideals of predictability, consistency, and intelligibility in the law.