| | lev us consider the rik hat the expectation of developing a rage Unica Tharsis tol us ha the ears feds of tne ig ao eirey iflcrent from one another that na Tikely thycany given mehod wil be wseful in all of them."* Fried. tnann makes the sare general pg, but he aubivies the Teg lative landtcapedifrendy. "Nether ells how t0 mediate jurtativtonalcspates among such leistative areas. Fortunately. the general point on which ‘Thorastedt, Fried nyanny and thers age noeinot detain ue here Ii rue that Vnrerprtation nit broadest eae covers at Jeet to widely iter tiaciplines, as many suthortice nove Seem 0 368M, WE nce at least fo major philosophies, one relating eo "interpreta Tian proper™ and the mher to judi lawmaking, and we may tell tet co difereniate also on other bases Cte er ee Fc nt he tl domain of statory interpretation aid application ie 40 heterogeneous that ie pre ‘less singles simple set of working rules does not automat Silly preclude a set-of broad intogeative principles hat leave rin Tor necessary slivergences. Ie may sll he pase, then, to Tre the basic elements and tubelements together into ® coherent, ‘cstttionaly ap funetona hte "Phe ingle of Lagat ao Teel Contract of Statutes fn si Ss La ih 128, Tare nae) eee thers Satemate exhaustive, at dese Tein 2 cree in whith "ievent apc ese ate wero ya eae amber ok Teal AS a tert questions fvesing gavel primes ae Belt is meas Shee stator ruen ave, dhe ehracter of a he in Taw and Sv Change a Contenpraey Britny 252253 coc tor Teision “tate ya exaly deine sci arene nan 2 lve iting appeach for lepine sal purest rae rs ngremareby dost Boel onthe Kid of Haute i Coto 30288 2 Four Constitutional Assumptions 1 sometimes more eaprtant to emphasve the alias th to eusidate fe obaere “Spree to Oliver Wendell Holes 2 A, Introduction ‘The analysit offered by this book rests om several constitu tional assumptions. TTawever obvious they may seem, they need te be expressed and kept continuously in the Foreground, because Wwthoue necesstrily intending to reject chem courts often act as if they were false B. First Assumption: Legistati Supremacy ‘The first assumption is thatthe gensral powers of government are constitutionally allocated among the thre central ranches i dct 3 way that, altough fe doce not enjoy an exlosive power to inks stan nw the legate brah vere making ower that takes precedence over the lnwmsking. powers espes {ively excreised bythe executive and judicial branches, “The facts that this separation of powers is not abgolute and 1. as ee bs ffl lal Content af Administrative. Aeton 28,32 (ots teat 5} CBee The Carte at La Sats Iraurne Pn aol mest 126 (Paulo 1989) 0 Kn'Evaeation othe Rue of Sonuiny Vetere 3 Us Reais (ys Re Facts, The Meanie nf States: What Conger Sai we What the Coit Sipe SU AAG SiS (Un AdVUSTT NTT dfthat eh allocation is complicated rath than simple in no wise dha feom the sinpc sserdon ths, skin the domains of inwmnaking in which thay are constittionally permitted to oper- steam within the dering means by which they make their pronancements, any cone herween the legislative will and the aia eit nest Be resolved favor @F the former, It is sunied therefore, that witsin these houndaris the judicial ivanch rust remain appropriately deferential to the properly promljated sews of te legislature. Although the courts, 10, rake yencrl la, they do dis inthe absence oe supplementation Of ature No reservation ace be made forthe courts! power te dkclaresconstiutunally ofensve sraute insti. ; im Lngland, where the constitution remaias unwritten, leg tive supromacy wre out of ideas that were encouraged by the ‘evolution of 1688.” Belore that, the lines between the branches Uf goverancat ad been widely blurred. In the Fourteenth century ines were also lyislators and. consistently with what the {overcign permed what the failed to acomplish as legislators they could often accomplish ae judges. ven after judges eased tovtt ae leitators tn the upper house, gaps between what wat ‘spresu and whiat-scemed fo be the tegstative purpose were inlet by notions of “equitable imerpretaton.” ‘The revslton of 16B8tontere the ied hat Parament woners over famlanental human rights eeatng to iberyy and p preeminent, were Tinted. Notions of “ll traf or “strict” Construction evolved ay judicial devies for ‘ncouraging or inkbting legate action. However, efforts to {sion or Uclect what the courts considered legislative misudg- snent or overreaching spurved Paliament to greater spect. Uiviendly judicial ineerpretation this encouraged a legislative polity thst, in milder foem, persists even today. * 2 Cewond 1-44 5 Th it murine dsm Lage om J Cove, Adiieasive tesa te ero Lj 286, 398398 (1936, ett, see R. Dis, Tori prtnte 9499 (80 e190) A the Common Lave 22-39 {de0NS fe Horach, Je, Serury Terrain Lig tr Plowen's Regus 19 Ry eps 301 (180305 0. Pie Ase Bk Ech Lie TTD tao, 11s Pictorte A Cane ey af the Coben Lae in bw (Sl HOY! AL Rai, Bay Sate Taerpetin, ABIL Re Tn (198): 5. Thome, 4 Dicorar Up the Escion Undersea of Stauee (142), rv by Prk fo Ls. Rey 22, 246.268 (194), I'D. Metin The Langan of the Law 196178 1963. eee PME SER —— CE EOE 5 moe G. Second Assumption: Exclusiveness of Statutory Vehicle 5. M. Radin A Shore Way with Stteses, 56 Hare Ree & U8 Gomi eae ee Jess cnnutin ypc: "The eidative power sal be vested ina Senate and General Avsnbiy Are, Se Te ao elle prvon onmony found in sete costrtone “Na pesvea «= helangig s9 ee branch shall exerie any of the pare pioperyilopaig So iter ef. SMe ote cet a ret pariah Constant Ar Ree anced ly Sf it fevers tate em ef ing te soe et leading A Cate Say Statutory Inerretc in Co. eat i Cai a Rew 218,285 (194) re Crd 5039, Ste 2evusrt ayT dnsh al fe canaatios provi in elt thay a Law say he nate estep hy ll" "an! the same Hitation ems toners iy negative inplication, is the enaetoene procelires prewtihed by theaters thie secon seston is gneve, it meas that Wot even the snot celiahle dicusient uf Iogslatiee history auch as a colors fice committee report say Mave the Force of law, Certaiy, it inay noe he piven weight eal to thao the statute to wih rigs il we, tat enn a progr ieginative content (i team meet the applicable fandards), or tecause fused for 3 porgose eer than acertaining the mean ingot the statute D. Third Assumption: Reliance on Accepted Means of Communication 9 Hog. Ca, Comat ne IN. $18; Can Cant at Ve $17; Th Costa 4 8: Mich Gt te $262 Ao. Conant BL, A. Cat ae Bk 1. The hae prio lestres are sont the tan ao ‘sue euteairl citation pon ow Palen Te [Counts eae perme tr loatie poser, nell he other sesh dee en ee tity Ingo, te he sete the ise of wor» [Eth paces of les sete gay ton st lla de actu cout ld nest of area eater ine members of the lla gently [Ey ‘acco fate pce Hie the ro unas tga Shane, "Peatal Interpret salto Four Cantonal Assumptions n those expressions according to accepted standards of communica tion. Although consticuionally implied, such standards ae not thmiclves matters of lw, Tha, as matters of fact they are snctincs hard to sacertaa and apply dns not absolve a fort i he say al Standards, prpone stn tells us that the legislature hae no constctional war- rant tw denuand reverence for the words in whith ie framey ie tiretves;""" and in the exaggerated terms of “reverence” for ara ngage we mae gre On the other hands eee Elear that, so long a8 the legislature uses language according to accepted standard, itis justibed in assuming that the cocrta Should read it according to the same standards. The legislate annot adequately discharge its responsibilty of shaping. the are unless the incegrity of the accepted communication process ismaintsined. ‘This premise should be kept constantly in mind, because covets have often felt foe to resognine and rele enecranaie at meaning gantrary to the preponderance of factual probabitics ar plasiilies of mening. That they may have Rees stogeatad by what they bave heleved to he the public kool is not, fa the light of the constitutional separation of power’, adequate josie ing a conscentis eft 1 din wn Frade it ally free 10 change or interfere. with ae even for what it conceives to he a wholeveine socal . Fourth Assumption: Necessity of Reasonable Availability [A fourth constitutional sssunption is that a legislature ta required to make the laws that enacts reasonably Seriahle to the pergans who are atected by them, Although the, Unies now ‘lac the law fs ies ia the constuvonal seqer eee that the legiature mast commmunieste ite commands el nee founceents by means of 8 speced kind of veils deve fd Iunched In'a spied way. Te would make to Seal BM. Rain A Short Way wih States, $6 Haw. Ls Rens 38 wl 4 6 Mare. Le Re, 38. 406 te ld os at, ravi 8$a TB i Te TTA oT TT assume, ne oe fam that the Constiuton is deeply. cone ae ih ths coetion a such a veele amon the other band, See Ne unconcerned with schether the veiele reaches iin tee destinati “ie conutions of at last thece states provide that @ law sy not rake eter uni it has heen pubised ® Mare ehan half TPa\eadlbs provides in enges not Inclvingemergeney, that & can oer elect until a speced. ported. has elapsed." A a jutional opportunity fur the potsons acted 0 adjust to ‘tevnc aw netrsarily ples a eontituiansl policy of provide see ee nate opportunity to kaow shat the new law provides JTRS ciectveness of the tow ie thus conditioned, n0t on actual inca o he las but on a reason opportnity 0 acquire ae a ey santa ea be met unless the eet eo Know extent tall aspects of the Telarc’ ammanition, oak ttl epltie communteation oles se eay ngnin standards of availability fo which the state Gir is constitutionally subject. This fe can do oy as pare of sere aggtalatve cones otherwise ie rans afoul our second Mrptettianal assumption, already dscsse a4 $2: Wis, Ca. VIL. $21: Utah Come, a 6 ges cattace halle ped inthe ial joural wiht dla afer BoA Rae ae Hts GF. Soe a BL Const at 111 830, The ore Peete Totesyrotaton a Cera Poisons il 1973, $82). 0 Nie th aac Sone oer ato of the a ee Maks Conc are $I8. Ni Const art 1, $11; ND, Cont elt $F, One Gt, 28: ena, Coe ae $0. Basic Concepts: ‘The Ascertainment of Meaning (Cognition) and Judicial Lawmaking Through the Assignment of Meaning (Creation) 1 beter the proces of jul lepation should be called fing salting tel ts ndenbiedy of grt pentical moment wien, Law andthe Svat Order 12 (1988) A. What Is Involved in Applying a Statute? mean Saced,” that the duty of the courts Mi ccspat to Eg, am Sons Conti, Lege Mie acti tet’ Hate Mage 9s Bs (BU8) te ED The ane Sn (OH) eS faiee ot enero eae Mat MTT at